Arnett v. Williams

• Decision Date: 01 March 1910
• Citation: 226 Mo. 109,125 S.W. 1154
• Parties: ARNETT et al. v. WILLIAMS.
• Court: Missouri Supreme Court

125 S.W. 1154

226 Mo. 109

ARNETT et al. v. WILLIAMS.

Supreme Court of Missouri. Division No. 1.

March 1, 1910.

1. MORTGAGES (§ 331) — DEED OF TRUST — POWER OF SALE.

A deed of trust may not be foreclosed by a newspaper notice, unless the power of the trustee to act is given either expressly or by necessary implication by the deed itself.

2. CONTRACTS (§ 147) — CONSTRUCTION — INTENTION OF PARTIES.

The court in construing an instrument must gather the intention of the parties thereto from the entire instrument and a clerical error therein may be disregarded.

3. MORTGAGES (§ 53) — DEED OF TRUST — POWER OF SALE.

A deed of trust which recites that the consideration shall be paid by the beneficiary to the grantor and acknowledges the receipt thereof, and in consideration thereof, grants to the beneficiary (not the trustee), his heirs and assigns, land described, and which provides that if the grantor shall pay a note described at maturity, the deed shall be void and the property conveyed shall be released, but otherwise the deed shall remain in full force "and the said sheriff or in the event of his sickness, death or absence from the county of ____ or other disability or refusal to act, the then acting sheriff of S. county, upon request of the holder of said note, his agent or attorney, shall sell the property," etc., and which states that the trustee agrees to faithfully perform the trust created, etc., and which has no habendum clause, and is not signed by the trustee, does not authorize the sheriff, on refusal of the trustee to act, to sell the land, the deed, because of the draughtsman's lack of knowledge of the law being too imperfect to be enforced.

4. MORTGAGES (§ 369) — REDEMPTION — STATUTES.

Rev. St. 1899, §§ 4343, 4344 (Ann. St. 1906, pp. 2390, 2391), providing for the foreclosure and redemption of deeds of trust in the nature of mortgages, provide for redemption as of course, and do not apply to equity cases to set aside trustees' sales and the deeds following, as inoperative to pass title because of irregularities, in which redemption is the mere price put on the decree in order to do equity.

5. EQUITY (§ 2) — JURISDICTION — STATUTES.

A statute ousting the jurisdiction of courts of equity in cases of equitable jurisdiction, must do so expressly or by inexorable implication.

6. ABATEMENT AND REVIVAL (§ 64) — REVIVAL OF ACTION.

Where the subject-matter of an action was real property, and the heirs of the deceased owner were parties, a formal revivor because of the death of the owner of an estate by curtesy who was a coparty was not necessary.

Appeal from Circuit Court, St. Clair County; C. A. Denton, Judge.

Action by F. M. Arnett and others against C. C. Williams. From a decree for plaintiffs, defendant appeals. Modified and affirmed.

H. T. Williams, for appellant. A. L. Shortridge and Montgomery & Montgomery, for respondents.

LAMM, P. J.

From a decree of the St. Clair circuit court setting aside a trustee's sale of 160 acres of land in St. Clair county, a trustee's deed to the purchaser and a deed from the latter to Williams, upon terms imposed as the price of the decree, to wit, the payment of the secured debt, interest, expenses of the sale, etc., Williams appeals. The sale was made on the 27th day of November, 1899, by Decherd, then sheriff of St. Clair county, under a deed of trust dated February 26, 1896. The title to the land then stood in Mary A. Arnett, a married woman — her husband being a tenant by the curtesy. She and F. M., her husband, executed the deed of trust to secure a small note ($72.95) to one Offield as boot in a swap of properties. At the time of foreclosure Williams held the secured note and Mary A. Arnett was dead. The plaintiffs are F. M. and two of the daughters of Mary A. The defendants are Williams (who alone appeals), another daughter of Mrs. Arnett, and the widow and descendants of a deceased son. Williams got title, such as it is, through the trustee's sale by a mesne conveyance from F. M. Arnett, the purchaser. Arnett's name was used as purchaser by Williams, Arnett paying nothing on his bid and Williams paying nothing to Arnett for his conveyance — the bid ($97.50) being credited on the secured note by order of Williams and the express consideration in the deed from Arnett to Williams being $1,800, a dignified (but mythical) sum named by himself.

Plaintiffs sue in equity, proceeding on two theories — one of them, that the trustee's sale was colorable only, and was brought about by Williams and F. M. Arnett under such circumstances and understanding that Williams holds his title seised to the use of Arnett and the heirs of Mrs. Arnett, subject to the original debt plus expenses and outlay. This phase of the case is developed at length on all sides. The equitable conditions said to entitle plaintiffs to set the sale aside and avoid the deeds as absolute conveyances by impressing them with an implied trust are asserted and denied respectively (mutatis mutandis) vehemently by plaintiffs and Williams. But unless we find against plaintiffs on the second theory of the case, an investigation and determination of the implied trust theory will not be necessary.

The second theory is this: It is alleged, in effect, by the bill that the sheriff of St. Clair county had no donation of power to execute the trust, the deed of trust holding no such terms and being so irregular as not to be enforceable by a sale under a newspaper notice, but only on reformation by, or foreclosure in, equity. In his decree the chancellor, inter alia, found facts warranting relief on this second theory as well as on the first. If, then, his decree can stand on either foot it is well enough; for if we hold with the chancellor, in effect that there was no donation of power to the sheriff of St. Clair county to execute the trust because of inherent and patent defects in the deed of trust, it follows that the sale was mummery; that the legal title did not pass; that the trustee's deed and conveyance from the nominal purchaser, Arnett, to Williams fall; and that Williams got equity through the decree, neither more nor less, viz., his debt, interest, outlays and expenses, found and decreed to be $172.50.

Attending to the deed of trust: It provides for three parties, viz., one of the first part, one of the second, and one of the third. The draughtsman, we take it, had not come from "a deed of trust state." At any rate, the record shows he was only familiar with mortgages giving power of sale to the mortgagee, i. e., the beneficiary, and not to a trustee, to whom the legal title was conveyed for the purposes of the trust, such as are in vogue in Missouri. Accordingly, after making the Arnetts parties of the first part, instead of making the trustee party of the second part, he wrote into that clause of the deed of trust the name of "J. M. Offield," the beneficiary, and into the blank provided for the beneficiary he wrote "Geo. M. Riddle, trustee." Instead of providing the usual nominal consideration as moving from the trustee, which together with the debt and trust mentioned and created would support the conveyance, he wrote into the deed the consideration of $72.95 "to be paid by the said party of the second part" (that is, Offield) to the parties of the first part and goes on to say that the parties of the first part acknowledge the receipt of that sum and in consideration thereof they "do grant, bargain and sell" by these presents "unto the said party of the second part" (that is, Offield) "and his heirs and assigns forever the following described tract of land situated in the county of St. Clair in the state of Missouri, to wit, the east half of the northwest quarter and the north half of the southwest quarter of section 14, township 38, range 27, containing 160 acres." It next says that the foregoing land is conveyed to the second party "with all rights, privileges and...