Bales v. Perry

• Decision Date: 31 January 1873
• Citation: 51 Mo. 449
• Parties: WILLIAM BALES, Defendant in Error, v. BENJ. A. PERRY, et al., Plaintiff in Error.
• Court: Missouri Supreme Court

51 Mo. 449

WILLIAM BALES, Defendant in Error,

v.BENJ. A. PERRY, et al., Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1873.

Error to Kansas City Court of Common Pleas

Franklin & Napton, for Plaintiffs in Error cited in argument:

(1.) As to exercise of discretion by trustee; McKnight vs. Wimer, 38 Mo., 132; Singleton vs. Scott, 11 Iowa, 589; Pearron vs. Jamison, 1 McLean, 197; Platt vs. McCullough, Id., 69, and cases there cited.

(2.) As to estoppel, Lamb vs. Goodwin, 10 Ired, 320; Chowing vs. Cox, 1 Rand., 306; 3 Leigh, 654; Wilburn vs. Spof ford, 4 Sneed, 704; Kellogg vs. Carrico, 47 Mo., 157; Jones vs. Moore, 42 Mo., 413; Medsker vs. Swaney, 45 Mo., 273.

Shephard & Slavens, for Defendant in Error.

The only point we deem it necessary to call the attention of the Court to, is the fact that the evidence shows that the trustee Benjamin Perry was not present at the sale.

At the time of the sale the plaintiff was in Weston, Platte county, Mo., where he resided, and until the trial of this cause had not been in Kansas City for nearly twenty years. Graham vs. King, 50 Mo., 22; and authorities there ted.

EWING, Judge, delivered the opinion of the court.

William Bales filed his bill in the Circuit Court of Jackson County, to redeem certain real estate which had been sold under a power of sale in a mortgage deed executed by him to B. W. Perry, one of the defendants, in 1862, to secure a debt of thirteen hundred and eighty-two dollars.

The mortgage contains a clause to the effect that the said Perry, party of the second part, or the Marshall of Kaw township, may sell the property at public vendue for cash at the Court House in Kansas City, first giving twenty days notice of time, terms and place of sale in some newspaper published in that city. The property consisted of some twenty lots in Ransom's Addition to Kansas City, and they were sold for sixteen hundred dollars, some eight hundred dollars less than the amount of the debt including interest.

The bill alleges and the answer admits that one H. B. Bouton acted as the agent of Perry in advertising the property and in conducting the sale, and that Perry was not present at the sale but at his home in Weston, where he had resided many years. The evidence shows that Perry prepared the advertisement and sent it to Bouton, with directions to have it published in a Kansas City paper, but did not name any particular paper; that he gave Bouton no particular directions as to the manner of selling the property, but simply directed him to sell it and make the money out of it if he could. Charles A. Perry, one of the defendants, purchased the property for himself and his co-defendant, E. H. Perry.

The lots, which were twenty-five feet front, each, were sold two together--the agent and auctioneer deeming this the best mode of making the sale. The evidence was somewhat conflicting as to the value of the property. The witnesses who from their vocation as real estate dealers, would seem to be the most competent judges, estimated it at about twenty-six hundred dollars, but this point is not urged as a ground for the relief sought. The Court rendered a decree allowing plaintiff's to redeem on the grounds, therein stated.

The first and principal question in this case is, whether the power to sell has been well executed. It is a familiar rule of law that a special authority must be strictly pursued, that the office and duties of a trustee being matters of confidence cannot be delegated by him to another, unless an express authority be conferred on him by the instrument creating the trust. (Hill, Trust., 175.) He is incapacitated from delegating any duty, unless the power is expressly given, which involves the exercise of any discretion or judgment. Mere mechanical or ministerial duties, as for example, causing advertisements of sale to be put up, proclaiming the sale at auction, and receiving bids may be done by others. (Powell vs. Tuttle, 3 Com., 396.)

But it is claimed that no substantial part of the duties or power of the mortgagee was delegated to the agent Bouton. The rule above stated furnishes the test; and a ready solution of the question is found in the application of this test to the facts of the case. All powers and duties which require the exercise of judgment or discretion are substantial, and cannot therefore be entrusted to another. The mortgage, in the present case, prescribed the place and terms of sale, the notice to be given thereof and the medium through which it should be given, i. e., a newspaper; and left all else to the discretion of the trustee himself.

The particular medium of advertisement and the manner of conducting the sale, are matters upon which the instrument is silent and in reference to which a special trust and confidence are reposed in the trustee; and these are the powers with which the trustee attempted to invest the agent, and which the latter actually exercised. It is manifest that these comprise the principal and most important duties devolving upon the trustee, and if they can be transferred to another, the instrument ceases to be actually the source and measure of the trustee's power and authority. The...