Million v. McRee

• Decision Date: 09 November 1880
• Citation: 9 Mo.App. 344
• Parties: BRAINARD M. MILLION, Appellant, v. WILLIAM G. MCREE ET AL., Respondents.
• Court: Missouri Court of Appeals

9 Mo.App. 344

BRAINARD M. MILLION, Appellant, v. WILLIAM G. MCREE ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 9, 1880

1. Inadequacy of price is not a ground for setting aside a conveyance made by a trustee under a deed of trust, unless so gross as to warrant a presumption of fraud.

2. The facts in this case disclose no improper conduct on the part of the trustee which warrants the court in setting aside the conveyance.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

MARTIN & LACKLAND, and ANDREW J. KENNEDY, for the appellant: The trustee has the right to adjourn the sale in order to prevent a sacrifice of the property to be sold.-- Judge v Beggs, 47 Mo. 545; Graham v. King, 50 Mo. 22; Richards v. Holmes, 18 How. 143; Johnson v King, 3 Ired. Eq. 336. A sale by a trustee will be set aside when the price is grossly inadequate.-- Vail v Jacobs, 62 Mo. 130; Wright v. Wilson, 2 Yerg. 294. When a trustee sells property in gross which is susceptible of division, and injurious results attend such sale, and the interests of the debtor are sacrificed thereby, the sale will be set aside.-- Chesley v. Chesley, 54 Mo. 347; Kelley v. Hunt, 61 Mo. 463; Goode v. Comfort, 39 Mo. 314; Tatum v. Holliday, 59 Mo. 422. A bare compliance with the condtions imposed by the terms of the power is not sufficient, and the sale will be set aside if not conducted with the utmost fairness.--15 Ill. 507; 14 Allen 396; 3 Metc. 311; 106 Mass. 516.

CREWS, FLOURNOY & STEPHENS, for the respondents, cited: Taylor v. Elliott, 32 Mo. 172; Goode v. Comfort, 39 Mo. 325; Powers v. Knuckoff, 41 Mo. 430; Carter v. Abshire, 48 Mo. 300; 51 Mo. 452; 52 Mo. 444.

OPINION

HAYDEN J.

This is an action in the nature of a bill in equity to set aside a sale of improved real estate situated in the city of St. Louis, on the grounds, as alleged, of fraud, and misconduct in various particulars on the part of the trustee in the deed of trust under which the sale was made. The allegations of conspiracy and collusion between Fleming, the trustee, and the other defendants, and of fraud on the part of the trustee, are not borne out by the testimony in the case, and in this opinion only the substantial facts as developed at the trial need be considered. The plaintiff and his wife had made, in March, 1874, a deed of trust to Andrew J. Fleming, as trustee, to secure to Margaret M. Fleming, the wife of the trustee, the payment of $10,000 and interest, and subsequently another deed of trust to secure to her the payment of $5,000 and interest, both of which deeds were outstanding upon the property at the time of the sale. The plaintiff also neglected to pay taxes, which by the terms of the deeds he was to pay upon the property thus conveyed as security for the notes. This property consisted of a tract of land on the corner of Fourth and Almond Streets, in the city of St. Louis, having a front of one hundred and twenty-seven feet and six inches on Fourth Street; and upon the land were five buildings fronting upon Fourth Street, and another building in the rear. The plaintiff failing to pay the principal notes, which became due in March, 1877, and also outstanding taxes, Fleming, the trustee, was requested by his wife, who, according to the evidence, owned the notes as her seperate property, to sell the real estate for payment of the indebtedness. Accordingly, Fleming advertised the property under the first deed of trust, the fourth day of April, 1879, being fixed as the day of sale. There is a dispute as to what happened at the interview between Fleming and the plaintiff which occurred on March 26, 1879, when Fleming called on the plaintiff at the latter's office, especially upon the question whether Fleming, who lived out of the city and was to come to town on the morning of April 4th, to make the sale, agreed to call on that morning at the plaintiff's office and accompany the latter to the court-house, where the sale was to be made. Fleming on that morning did not call at the plaintiff's office, but proceeded to the east front door of the court-house, and there made the sale shortly after twelve o'clock, and at or about the usual hour for such sales. The plaintiff was not present. At the request of Fleming, Mr. Conn, who was the business partner in the real-estate business of the defendant McRee, cried off the property. Conn read the advertisement and announced the terms of sale as cash, and that $500 would be required to be paid down on the bidding off of the property, and the remainder before two o'clock, otherwise the property would be sold again. The property was cried in the usual way. The sale was made of the property as an entirety, nothing being said as to any division or selling in parcels. But few persons were present, and only one bid was made. This bid was made by the defendant McRee, as agent for Mrs. Fleming, and the property was knocked off to him. Subsequently Fleming, the trustee, made a deed of the property to McRee, who then conveyed the property to Fleming, as trustee of his wife. No money passed in the transaction. With the facts thus in outline before us, we may proceed to consider those which are disputed, at greater length, in connection with the points which are raised by the plaintiff. The court below dismissed the bill.

Though no fraud, and nothing in the nature of a conspiracy between any of the defendants, is shown in this case, it is contended that it does appear from the facts that the trustee failed to exercise that impartiality which the law requires, and violated his duty in many particulars, to the detriment of the debtor, whose rights he was bound as carefully to observe as those of the creditor, in discharging the trust. It is contended that the trustee was charged with the knowledge that there was one present at the sale who was authorized to bid $15,000 for the property, and that thus he violated his duty in permitting the auctioneer to sell the property for a third of that sum. But this argument proceeds upon an erroneous view of the evidence. The agent of Mrs. Fleming had no authority to bid $15,000 for the property. That sum was merely named by her as a limit beyond which her agent was not to go, in case of adverse bidders, and the fact that the trustee and the auctioneer were aware of this did not...