Beedle v. Mead

• Decision Date: 31 October 1883
• Citation: 81 Mo. 297
• Parties: BEEDLE et al., Appellants, v. MEAD et al.
• Court: Missouri Supreme Court

81 Mo. 297

BEEDLE et al., Appellants,
v.
MEAD et al.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

[81 Mo. 298]

William A. Wood and Ramey & Brown for appellants, cited Wagner v. Phillips, 51 Mo. 117; Mitchell v. Jones, 50 Mo. 438; Shed v. Railroad Co., 67 Mo. 487; 1 Coke on Lit., 39a; R. S. 1879, § 3672; Taylor v. Runyan, 3 Clark 474; Freeman on Judg., § 52; Wheeler v. Scott, 3 Wis. 362; R. S., §§ 990, 1002, 2335, 5595; Nesbit v. Neil, 67 Mo. 275; Reed v. Austin, 9 Mo. 713; Weston v. Clark, 37 Mo. 568; Durette v. Briggs, 47 Mo. 356; Den v. Morse, 7 Halst. 337; Gamble v. St. Louis, 12 Mo. 618; Harrington v. Utterback, 57 Mo. 519; Clark v. Ins. Co., 52 Mo. 272; Bank v. Evans, 51 Mo. 335; Vogler v. Montgomery, 54 Mo. 577.

Shanklin, Low & McDougal with Frank Sheetz for respondents.

The petition does not state facts sufficient to constitute a cause of action. There is nothing in the petition showing that plaintiff was in possession at the commencement of the suit, and no facts are stated from which possession can be inferred. Clark v. Ins. Co., 52 Mo. 272; Keane v. Kyne, 66 Mo. 216. It is averred in the petition that the execution under which defendants claim, was issued on a mere memorandum on the judgment docket, and that no judgment was ever rendered or entered on the records of the court. If such is the case, the deed to defendants is a nullity, and would cast no cloud upon title, and plaintiff being out of possession, should have resorted to ejectment. Clark v. Ins. Co., 52 Mo. 272. If the petition is sufficient, still plaintiff cannot recover, because, (a) It is shown by the evidence that plaintiff was not in possession at the commencement of the suit, and, (b) There is no reasonable pretense that defendants perpetrated any fraud upon any one, or that the sale was not perfectly fair, open and regular. The deed to plaintiff was defective, because all of the trustees were not present at the sale, and her right to the land depends on the validity of the sale. 1 Perry on Trusts, § 411; Berger v. Duff, 4 Johns. Ch. 367; White v. Watkins. 23

[81 Mo. 299]

Mo. 423; Hill on Trustees, p. 305; Powell v. Tuttle, 3 Comst. 397; Smith v. Wildman, 37 Conn. 384. The plaintiff's case rests solely upon the inadequacy of the price defendants paid for the land, but such inadequacy is not, of itself, a distinct principle of relief in equity. Hammond v. Scott, 12 Mo. 9; Meir v. Zelle, 31 Mo. 331; H. & St. J. R. R. Co. v. Brown, 43 Mo. 294; Parker v. Railroad Co., 44 Mo. 415; Wagner v. Phillips, 51 Mo. 117; McPike v. Aullman, 53 Mo. 551; Durfee v. Stewart, 59 Mo. 491; Durfee v. Moran, 57 Mo. 374; Erwin v. Parham, 12 How. (U. S.) 197.

PHILIPS, C.

On the 1st day of May, 1877, Jane A. Thompson of Livingston county, Missouri, loaned to Edwin J. Bell the sum of $3,500, and to secure the payment thereof, the said Bell executed to three trustees, a deed of trust on certain real estate in Livingston county, which was duly recorded in said county.

The debt being due and unpaid, according to the terms of said deed of trust, on the 8th day of May, 1879, the trustees advertised said land for sale in a newspaper published at Chillicothe, in Livingston county, and on the 6th day of June, following, said land was sold under the trust deed, and the said Jane Thompson, became the purchaser thereof, at the price of $3,500. It appears from the evidence, that only one of the said trustees was present at, and conducted the sale. The deed was made, however, by all the trustees. It further appears, that prior to the making and recording of said deed of trust, there was a suit pending in the circuit court of Livingston county, wherein said Bell was plaintiff, and one James M. Henry, was defendant. At the January term, 1877, of said court, the following entry was made of record in said cause:

“EDWIN J. BELL,

v.

JAMES M. HENRY,

Now come the parties hereto and file an agreement to dismiss this suit as follows, viz:

[81 Mo. 300]

It is agreed by and between the plaintiff and defendant in this cause, that this suit shall be dismissed, each party paying one-half of the cost.

EDWIN J. BELL,

J. M. HENRY,

J. P. DILL, Agent.

It is therefore considered and adjudged by the court that plaintiff recover of defendant, James M. Henry, one-half of the costs of this suit, and that he have execution therefor. It is further ordered and adjudged by the court, that defendant, James M. Henry, recover of plaintiff, Edwin J. Bell, one-half of the costs of this suit, and that he have execution therefor.”

The defendant, Monroe, was deputy clerk of the said circuit court, and the defendant, Mead, was deputy recorder of deeds in said county. The day after the advertisement of said land for sale, under the deed of trust, the defendant, Monroe, as said deputy clerk, without direction of Henry, in whose favor said judgment for costs against Bell was rendered, and without the direction of his principal, the circuit clerk, made out a bill of costs in said suit, and issued an execution therefor. This execution was for the whole of the costs remaining unsatisfied, as claimed by the deputy clerk. The following is the bill of costs thus made out:

EDWIN J. BELL,

v.

JAMES M. HENRY.

Oct. 12th, 1876.	Clerk James Wright, filing and entering suit	$ 20
2 copies petition and seal, 75c	1 50
1 original writ, $1; 1 copy writ and seal, 60c	1 60
Writ of sequestration	1 50
Jan. 1st, 1877.	Docket, 10c; entering agreement, 20c; copy agreement, 10c	40
Judgment v.

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