Barnes v. Stone, Sheriff And Acting Trustee

• Decision Date: 03 July 1906
• Citation: 95 S.W. 915,198 Mo. 471
• Parties: BARNES, Appellant, v. STONE, Sheriff and Acting Trustee
• Court: Missouri Supreme Court

95 S.W. 915

198 Mo. 471

BARNES, Appellant, v. STONE, Sheriff and Acting Trustee

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from New Madrid Circuit Court. -- Hon. H. C. Riley, Judge.

Affirmed.

E. F Sharp and Robt. Rutledge for appellant.

(1) The right of the surviving partner to settle up the partnership estate existed at common law and has never been taken away from him by statutes of this State; consequently, it remains in full force, and he may proceed to wind up the partnership estate without administration or any action of the probate court. At common law the title to all partnership property is invested in the surviving partner for this purpose. Having the right to settle up the partnership estate, his acts, done in the pursuance of that right, must be legal. Easton v Courtwright, 84 Mo. 37; Crook v. Tull, 111 Mo 288; Goodson v. Goodson, 140 Mo. 215; State v. Withrow, 141 Mo. 69; Bredow v. Mutual Savings Assn., 28 Mo. 181; Holman v. Nance, 84 Mo. 674; Scudder v. Ames, 142 Mo. 188; Hargadine v. Gibbons, 114 Mo. 561. (2) The above is the generally accepted doctrine in this country. Mathews v. Hunter, 67 Mo. 295; Hartnett v. Fegan, 3 Mo.App. 1; Delinenice v. Guillaume, 2 Sand. Ch. 366; Andrews' Heirs v. Brown's Admr., 21 Ala. 437; Murphy v. Abrams, 50 Ala. 293; Cobble v. Tomlinson, 50 Ind. 550; Merrell v. Dickey, 38 Mich. 45; Pierce's Admr. v. Trigg's Heirs, 10 Leigh (Va) 423; Dyer v. Clark, 5 Met. (Mass.) 577; Tallyhurst v. Champlin, 4 R. I. 209. (3) The surviving partner may exhaust the partnership estate in order to pay claims against it. Authorities cited under points 1 and 2. (4) The trustee under a trust deed is authorized to pay all debts which are liens subsequent to the trust deed. Notes, so secured by subsequent liens, are equivalent to cash in his hands. Mead v. McLaughlin, 42 Mo. 198; Cooney v. Laird, 153 Mo. 433. (5) A mortgagee has the right to pay taxes and the mortgage secures the same, and this, whether the mortgage gives this specific power or not. Chrisman v. Hough, 146 Mo. 102; Brown v. Brown, 124 Mo. 85; 1 Jones on Mortgages, sec. 358. (6) A sale of land under a trust deed without authority of the owner of the debt is absolutely void. Magee v. Burch, 108 Mo. 336; Cutler Investment Co. v. Dunsworth, 146 Mo. 361. (7) The act of the sheriff in selling land under a deed of trust is not an official act. Dunham v. Hartman, 153 Mo. 632.

J. V. Conran for respondent.

Upon the petition of the appellant it is apparent that he had no right to demand of the respondent trustee the acceptance of the note made, executed and delivered by Albert Maynard, Frona Maynard and Hulda Stanley after the death of J. H. Stanley. After the sale of the said premises by respondent trustee, he became liable to Barnes for the amount of the Himmelberger note and the taxes advanced by Barnes and to the creditors of the estate of Stanley and Maynard for the balance. Appellant having requested respondent to sell the property, and then purchasing thereunder, and then refusing to pay, cannot complain that said acting trustee did readvertise and sell. Respondent was solvent under the proof. R. S. 1899, sec. 3649; McKinzie v. Mathews, 59 Mo. 99; Schuster v. Myers, 148 Mo. 422; Skrainka v. Oertel, 14 Mo.App. 374; Dickhaus v. Oderheide, 22 Mo.App. 76; Wilcox v. Walker, 94 Mo. 88; Lockwood v. Lunsford, 56 Mo. 68; Echelcamp v. Schrader, 45 Mo. 505.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This is an appeal from the circuit court of New Madrid county, Missouri, dissolving the temporary injunction which had been previously granted by said court restraining and enjoining the defendant Stone from selling certain real estate in said county, under and by virtue of a certain deed of trust made and executed on the 10th of November, 1899, by J. H. Stanley and Albert Maynard as co-partners in the saw-milling and timber business at Conran, Missouri.

The petition for the injunction in substance stated the following facts: That on the 10th of November, 1899, J. H. Stanley and Albert Maynard were the joint owners in fee simple of 354.66 acres of land specifically described, all situated in New Madrid county, Missouri. That on the 10th day of November, 1899, said Stanley and wife and said Maynard and wife made, executed and delivered their certain deed of trust to the above-described lands to John H. Himmelberger, as trustee, to secure $ 1,241.31 to the Himmelberger-Luce Land & Lumber Company, as evidenced by their notes for that amount; that the said notes secured by the said deed of trust were past due and wholly unpaid and were the property of the plaintiff Barnes. It is then alleged that on the . . . . day of March, 1903, the defendant at the request of the plaintiff proceeded to sell the above-described lands at public sale to satisfy said debt; that at the said sale, the said land was sold, and plaintiff was the highest bidder therefor at the sum of $ 3,010. It is then alleged that on the 23rd of February, 1901, the said Maynard and wife and Mrs. Stanley, the widow of J. H. Stanley, the deceased copartner, made, executed and delivered to one J. M. Morrow, as trustee, their deed of trust on the same lands above described to secure the payment of $ 1,210, to one L. F. LaFont, and that plaintiff had also become the owner of the notes secured by said deed of trust. It is also alleged that on the 20th of December, 1902, in order to preserve the security, the plaintiff paid the taxes on said lands, to the amount of $ 122.64. It is then alleged by the plaintiff that on the 5th of March, 1903, he tendered to the defendant as trustee in the first-mentioned deed of trust and in payment of his bid of $ 3,010,

Four notes secured by the first above-

described deed of trust dated Novem-

ber 10th, 1899, amounting to

$ 1,607.72

The unpaid note secured by the second

above-described deed of trust dated

February 23rd, 1901, amounting to

690.11

The three tax receipts above described

amounting to

122.64

Money of the U.S. for publishing notice

of sale per bill

6.00

Lawful money for trustee's fees of de-

fendant as agreed

40.00

Cash

583.53

Making a total of

$ 3,010.00

And that the defendant refused to accept in satisfaction of said bid and refused to make and deliver to plaintiff his trustee deed to said lands. It was then alleged that the defendant had re-advertised said real estate for sale under the first above-described deed of trust, although not requested so to do by plaintiff, the holder of the note secured thereby; that if such sale is permitted, it will cast a cloud on the title of plaintiff to said lands, and that the defendant unless restrained will again sell said real estate and plaintiff will suffer great and irreparable injury, that the security of his notes will be impaired and lost, that an adequate remedy cannot be afforded for damages; that the said J. H. Stanley is dead and his estate is insolvent, and that the defendant S. B. Stone and Albert Maynard are insolvent. The prayer of the petition was that the defendant be restrained from selling the lands by virtue of said deed of trust, and that he be ordered to make and deliver to plaintiff his trustee's deed and receive the notes, money and receipts above described in full payment therefor.

The temporary writ of injunction was granted, and at the March term, 1903, the defendant filed his answer to the petition, in which he admitted the conveyance of the lands by Stanley and Maynard to Himmelberger to secure the $ 1,241.31. Admits that at the request of the plaintiff on the 4th of March, 1903, defendant advertised and proceeded to sell the lands in said deed of trust described, in all respects as required by law, and did sell the same to plaintiff for the sum of $ 3,010. Defendant states that previous to the acquiring by plaintiff of the various notes described in plaintiff's petition, J. H. Stanley had departed this life; that the second deed of trust secured in favor of L. F. LaFont, was executed after the death of said Stanley. It is then alleged that on the 28th of February, 1901, L. F. LaFont was duly appointed administrator of the partnership estate of Stanley and Maynard, and qualified as such, and that the said estate was still pending and unsettled in the probate court of New Madrid county at the time of the institution of this suit for injunction. Defendant states that when the plaintiff bid off the said lands at the sale thereof by defendant, under the deed of trust to said Himmelberger, the plaintiff promised the defendant to pay the said sum of $ 3,010, the amount of his bid for said lands, as soon as he came to town, and defendant did not at once resell said lands on account of having failed to receive the amount of the bid therefor, but applied to plaintiff for the said sum of $ 3,010. The plaintiff failed and refused to pay the same, and that thereupon the defendant did immediately proceed to advertise the said lands for sale. The answer denies that plaintiff will suffer any great and irreparable injury. Denies that plaintiff's security will be impaired or lost. Denies that plaintiff has no adequate remedy by action at law, and says that the insolvency of J. H. Stanley and Albert and Frona Maynard in no way affects the parties to this action. Defendant alleges that at the time of the institution of this suit, he was, and still is solvent. Having fully answered, he prays to have the injunction dissolved.

Afterwards, on the same day, the defendant filed his motion to dissolve the injunction. Both parties having consented to the trial of said cause at the March term, 1903, it was submitted to the court and after hearing all the testimony, the court dissolved the injunction and dismissed the bill.

I. Has this court...