Lipscomb v. New York Life Ins. Co.

• Decision Date: 09 March 1897
• Citation: 39 S.W. 465,138 Mo. 17
• Parties: LIPSCOMB et al. v. NEW YORK LIFE INS. CO.
• Court: Missouri Supreme Court

39 S.W. 465

138 Mo. 17

LIPSCOMB et al. v. NEW YORK LIFE INS. CO.

Supreme Court of Missouri, Division No. 1.

March 9, 1897.

SALE UNDER TRUST DEED — ACTION TO SET ASIDE — EQUITY.

1. Where property was sold under a trust deed in strict accordance with its terms, and without fraud, equity will not set aside the sale, in behalf of a plaintiff who does not offer to redeem, because the trustee making the sale was agent for the beneficiary, who was also the purchaser, which fact was known when the deed was executed, and a provision was inserted that it should not invalidate the sale.

2. The fact that property sold under a trust deed for less than its value in former years, owing to a general depreciation in values, the price realized being, however, its fair market value at the time the sale was made, does not afford a ground for equitable jurisdiction to set aside the sale.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by J. H. Lipscomb and others against the New York Life Insurance Company to set aside a sale of property under a trust deed. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

Karnes, Holmes & Krauthoff and Lipscomb & Rust, for appellants. Austin & Austin, for respondent.

BRACE, J.

On the 4th day of June 1889, James C. Nettleton and Virginia P., his wife, borrowed of the defendant the sum of $20,000, for which they executed their promissory notes of that date, as follows, viz.: One principal note for $20,000, payable to the said insurance company 5 years after date, and ten semiannual interest notes, payable to said company, successively in 6, 12, 18, 24, 30, 36, 42, 48, 54, and 60 months after date; all of said notes payable with interest thereon at the rate of 6 per cent. per annum after maturity, at the office of said insurance company in the city of New York, and on the same day duly executed their deed of trust, conveying to James H. Austin lot 18 in block 20 in Asburne's addition to the city of Kansas, fronting 25 feet on Baltimore avenue, and running back 142 feet, to secure the payment of said promissory notes and interest, with power of sale in case of default in the payment of said notes, or either of them, according to their tenor and effect when the same become due and payable, or in case of default in the payment of all taxes, assessments, or public rates levied upon said premises, and in case of default the whole amount of the indebtedness was to become due and payable at once, without notice. This deed of trust, in addition to the usual covenants in such instruments, contained the following: "The said James H. Austin may sell and convey said property under the power aforesaid, though he has been, may now be, or may hereafter be, attorney or agent of said third party (the insurance company) in respect of the loan made by said third party on this deed of trust and said notes, or in respect of any matter or business whatever." This deed of trust was duly recorded on the 7th day of June, 1889. Afterwards, by deed dated the...