Brickenkamp v. Rees

• Decision Date: 30 April 1879
• Citation: 69 Mo. 426
• Parties: BRICKENKAMP, Plaintiff in Error, v. REES.
• Court: Missouri Supreme Court

69 Mo. 426

BRICKENKAMP, Plaintiff in Error,

v.REES.

Supreme Court of Missouri.

April Term, 1879.

Error to St. Louis Court of Appeals.

P. E. Bland and A. McIlhinney for plaintiff in error.

T. W. B. Crews and C. M. Napton for defendant in error.

HOUGH, J.

The plaintiff's intestate executed and delivered to the defendant, Rees, as trustee, a deed of trust of certain land in Franklin county, to secure the payment of certain notes to the defendant Jones, the cestui que trust in said deed. After default in the payment of the notes, and upon the request of the defendant Jones, the holder thereof, and after due notice given by the trustee of the time, terms and place of sale, and of the property to be sold, said land was sold, and the defendant Jones became the purchaser. Jones having refused to pay the purchase money, the present suit was instituted for specific performance. The separate answers of the defendants admitted the sale and purchase by Jones; and, with other defenses in avoidance thereof, averred that the defendant, Rees, was not present at the auction. The circuit court found the issues for the defendant, and dismissed the plaintiff's petition. This judgment was affirmed by the court of appeals, and the plaintiff has brought the case here by a writ of error.

The sale took place at the court house door in Union, the auctioneer or crier standing in the door, and the persons attending the sale, eight or ten in number, being inside in the hall. The testimony as to the presence of the trustee during the sale was conflicting. Four witnesses testified that he was present, and three, including the trustee, testified that he was not. It is conceded that he was present at the court house door before the sale began, and that after the sale was over he went with the crier and the purchaser, Jones, into the collector's office a few feet distant from the door where the sale was made. The trustee testified that during the sale he was not at the court house, but in a saloon on the opposite side of the street, and that he was not present at the sale because he did not think it was necessary for him to be there. Some of the witnesses who testified that he was present were bidders, and were more observant, doubtless, of other matters than of the presence or absence of the trustee. The positive testimony of the trustee, who, so far as the record shows, is entirely disinterested, must, under the circumstances, be regarded as conclusive of his absence, especially as he is corroborated in this particular by the crier, who, in soliciting bids, would very naturally observe the entire assemblage, inasmuch as it was a...