Vail v. Jacobs

• Decision Date: 31 January 1876
• Citation: 62 Mo. 130
• Parties: JAMES H. VAIL, Appellant, v. LILLEY A. JACOBS, Respondent.
• Court: Missouri Supreme Court

62 Mo. 130

JAMES H. VAIL, Appellant,

v.LILLEY A. JACOBS, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Reynolds & Relfe, for Appellant, cited Am. Law Reg., 2 vol. [N. S.] p. 711-12, § 20, and cases cited; Doe vs. Robinson, 24 Miss., 688; Singleton vs. Scott, 11 Ia., 589; Howard vs. Thornton, 50 Mo., 292; Bates vs. Perry, 51 Mo., 449; Graham vs. King, 50 Mo., 23; Longworth vs. Butler, 8 Ill., 32, 44; Stine vs. Wilkson, 10 Mo., 94; Goode vs. Comfort, 39 Mo., 328; Wright vs. Wilson, 2 Yerg., 394; Wallace vs. Easton, 5 How. Pr., 102, 103; Am. Law Reg., vol. 2, [N. S.] pp. 724, 726, 729, §§ 31, 32, 36, and authorities cited; Gibson's Heirs vs. Jones, 5 Leigh, [Va.] 370; Norman vs. Hill, 2 Pat. & Heath, [Va.] 676.

Krum & Madill, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff brings this suit to set aside the sale of his land made under a deed of trust; to cancel the deed made by the trustee, as well as subsequent deeds, for permission to redeem, for an account of the rents and profits, and for possession. The property has a frontage of fifty feet on Olive street, by a depth of one hundred and thirty-one feet, and is situate between Ewing and Leffingwell Avenue. The defendant, Mrs. Jacobs, formerly Mrs. Nagus, is in possession, claiming under a deed made to her by Hazel, who conveyed to her on the same day that the deed of Nagus, her former husband, was made to him, and for the same expressed consideration.

Our consideration will be directed and restricted to the questions discussed by counsel in this court, and which, so far as an opinion can be formed, were the theme of discussion in the court below.

The salient points thus presented are in relation to the presence of the trustee at the sale, and the price at which the property sold. We have given great attention to the testimony, but have not been able to arrive at a result at all coincident with that reached by the trial court.

It is to be observed, in the first place, that the deed of trust does not, as is usual, contain a provision that the recitals contained in the deed of the trustee, shall be prima facie evidence of their truth. In the absence of any such proviso, some evidence would have to be introduced in support of the recitals of the trustee's deed. (Carter vs. Abshire, 48 Mo., 300; Neilson vs. Chariton Co., 60 Mo., 386.)

The evidence offered by defendant was sufficient, perhaps, to supply the lack of a proviso of this sort, sufficient to make out a case strong enough on the point of the presence of the trustee at the sale, did that evidence stand alone and uncontradicted, to warrant us in accepting as a fact, the allegation of the answer in reference to his presence. But that evidence is by no means without contradiction. We have the testimony of two witnesses, one of whom at least, was disinterested, who went to the place of sale beforehand, with the express object in view of seeing whether the trustee would be there, who remained until the sale was over, and who both unite in the statement that the trustee was not present.

The opposing testimony offered by the defendants we do not regard as overthrowing that just referred to, and this for several reasons: It is not to be expected that a witness who casually happens at a certain locality would observe surrounding occurrences with that degree of accurate attention which one would who comes with a single object in view, and on which his perceptions are actively centered. As to the auctioneer who cried the sale, his memory appears to grow fresher with the lapse of years, and his testimony to gather confidence in an inverse ratio to the length of time intervening between events and the date of his testimony concerning them. On the trial of an ejectment for the possession of the property in controversy, occurring within a short period after the sale took place, this witness, according to the testimony of two attorneys who called him on the stand in relation to the point, testified to the presence of the trustee at the sale with great hesitancy, saying, in substance, he was not certain whether the trustee was present; his...