Benkendorf v. Vincenz

• Decision Date: 31 March 1873
• Citation: 52 Mo. 441
• Parties: ANNA BENKENDORF, Appellant v. FREDERICA VINCENZ, et al., Respondent.
• Court: Missouri Supreme Court

52 Mo. 441

ANNA BENKENDORF, Appellant

v.FREDERICA VINCENZ, et al., Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

John F. Darby, for Appellant.

I. The bill charges that one of the papers in which the advertisement of the Trustee was printed, the St. Louis County Legal Record and Advertiser, was not a newspaper in the proper sense of the word, and that therefore a publication therein was not sufficient.

This is fully admitted by the first three defendants, who made default and filed no answer; and it is not denied in the answer of the other defendant, who was permitted to answer, so that the facts as charged are admitted by all the defendants; and therefore the advertisement was not published as required by the terms of the Deed of Trust.

II. The property was sacrificed at what was less than half its value, viz: $960, being sold in a lump and not in lots as it should have been, and as it had been done more than eight years before, when Benkendorf bought it at public sale, and when it was sold in separate lots, one lot at a time, and when he paid more than two thousand dollars for the same property, as shown by the evidence; when there were no improvements to any extent near or in the neighborhood of this property. He in like manner when he executed the Deed of Trust to Hertter, the Trustee, deeded and described the lots one at a time, and numbering and describing them as they had been numbered and described when sold by the city; and the money was borrowed on them as numbered, when the money was borrowed of Frederica Vincenz. The Trustee Hertter put up the whole six lots and sold them in a lump, when there was not a single bidder present, except Steele the agent of Frederica Vincenz. This is admitted in the answer, and is attempted to be justified on the ground that it was suburban property, outside the city. This was clearly against right and justice and was a violation of the duties of the trustee; and the property should have been sold in lots, according to the sub-division, one lot at a time, as it had been sold originally by the City of St. Louis, when the same property had been sold for more than double the amount, some eight years and a half before. The Trustee in making the sale, is the agent of both parties. (27 Mo., 77; Goode vs. Comfort, 39 Mo., 313.)

“Sale of land and town lots en masse which are susceptible of division, is illegal, and the sale will be set aside.” (Day vs. Graham 6 Ill., 435; Woods vs. Morrell, 1 John. Ch., 103; Wakefield vs. Campbell, 20 Maine, 393.) And the rule becomes directly imperative, that where the lots have been previously sub-divided into separate and distinct lots, that the division shall not be disregarded by the trustee, and the lots sold in a lump or one body, as if no such division had been made. (Fine vs. St. Louis Public Schools, 30 Mo., 166; Chesley vs. Chesley, 49 Mo., 540; Greenl. Evid., § 316; Evans vs. Wilder, 5 Mo., 319; S. C., 7 Mo., 362; Evans vs. Ashley, 8 Mo. 177; Hill on Trusts., 479-480-495; Lewis on Trusts, 367; Gray vs. Shaw, 14 Mo., 341; Rector vs. Hart, 8 Mo., 460; 2 Am. Law Reg., 712; 27 Mo. 77; Conway vs. Nolte, 11 Mo. 76; Goode vs. Comfort, 39 Mo. 313.)

Finkelnburg & Rassieur, for Respondents.

I. Selling in a lump is not per se ground for setting aside a trustee's sale. It is a matter of discretion with the trustee under all the circumstances of each case. (Goode vs. Comfort 39 Mo., 313; Taylor's Heirs vs. Elliott, 32 Mo., 175; Kellogg vs. Carrico, 47 Mo., 157; Carter vs. Abshire, 48 Mo., 300; Ross vs. Mead, 10 Ills., 171; Gillespie vs. Smith, 29 Ill., 473; Singleton vs. Scott, 11 Iowa, 576.)

The true question in all such cases, is not whether the property was or was not sold in a lump, but whether such a mode of selling was in fact an act of unfairness in the particular case, and resulted in such injury to the debtor as to warrant the Court in exercising its equity powers for the purpose of setting aside the sale. There is no inflexible, arbitrary rule, requiring a sale in sub-divisions in all cases.

A paper devoted to the gathering up and dissemination of legal news is a newspaper, and in that sense the St. Louis Legal Record and Advertiser was a newspaper, and publication in it imparted notice of a sale under this deed of trust. (Kellogg vs. Carrico, 47 Mo., 157.) The act of March 5th, 1861, (Session Acts 1861, p. 100) requires all notices of sale under deeds of trust to be advertised in this paper, and the act was not repealed until March 23, 1863.

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in Chancery, instituted in the Circuit Court of St. Louis County by Anna Benkendorf,...