Berry v. Cobb

• Decision Date: 23 September 1929
• Docket Number: No. 4655.,4655.
• Citation: 20 S.W.2d 296
• Court: Missouri Court of Appeals
• Parties: J.A. BERRY, APPELLANT, v. CHARLES COBB AND S.A. WARD, RESPONDENTS.<SMALL><SUP>*</SUP></SMALL>

20 S.W.2d 296

J.A. BERRY, APPELLANT, v. CHARLES COBB AND S.A. WARD, RESPONDENTS.^*

No. 4655.

Springfield Court of Appeals. Missouri.

Opinion filed September 23, 1929.

Appeal from the Circuit Court of Bollinger County. — Hon. Peter Huck, Judge.

AFFIRMED.

Russell L. Dearmont and W.C. Russell for appellant.

Davis & Damron for respondent.

SMITH, J.

This is a suit in replevin filed in the circuit court of Bollinger county, upon proper petition and affidavit. The cause was tried on the 14th day of March, 1928. The property involved consisted of a certain lot of store fixtures and furniture fully described and valued in the petition at five hundred dollars. At the institution of the suit defendant, Charles Cobb, was in possession of the property under and by virtue of an agreement which he had made with defendant S.A. Ward.

The plaintiff, J.A. Berry, who claimed to be the owner of the property, had on the first day of September, 1924, given a deed of trust upon some real estate situated in the town of Glen Allen, Bollinger county, Missouri, to Charles Cobb, trustee for one James A. McCullough, to secure the payment of a note of even date with the deed of trust for the sum of $1800, due twelve months after date with interest at eight per cent from date until paid. The deed of trust included the personal property involved in this litigation which is described in the deed of trust as follows:

"Also store fixtures in store building consisting of counters, shelving, show cases, scales, safe, desk and all store fixtures."

Defendant S.A. Ward became the owner of the note and deed of trust before foreclosure. The plaintiff made default, and Ward requested Cobb, as trustee, to foreclose, and Ward took the deed of trust to the editor of the Banner Press and requested him to advertise the property for sale thereunder. The advertisement was published in the paper for the length of time required, but was defective in that it failed to state that the trustee would sell the personal property in the deed of trust described, but the first part of the notice of trustee's sale contained a description of the chattels involved in this suit just as described in the deed of trust and as heretofore set out, but said notice contained no statement that said chattels would be sold by the trustee, but merely stated that the trustee would "offer for sale and sell at public vendue to the highest bidder for cash in hand all the real estate described in said deed of trust, or so much thereof as will be sufficient to pay the note, interest and costs."

Ward was a subscriber to the Banner Press during all the time of the publication of the notice, and read it in the paper, was present at the sale and heard the trustee read it just before he asked for bids. At the sale Ward bid $2500 for the property, this being sufficient to pay the note, interest and cost of foreclosure, and the sale was made to him, and he was given a trustee's deed dated September 12, 1927 (the date of the sale as advertised), containing the usual recitals and describing the real estate and also the personal property as it is described in the deed of trust, which trustee's deed was filed for record on the same date. After this sale, defendant Cobb, who had been previously renting the store building and fixtures from the plaintiff, attorned to Ward, and from that time on regarded Ward as the owner of the property.

The suit was originally brought against Cobb alone, but Ward upon his own application became a party defendant.

The joint answer of the defendants contains the following averments, which clearly states their contentions in this matter:

"Defendants further state that in advertising the sale of said property under the trustee's sale, as aforesaid, the publisher who made publication of the notice of sale, as required by the terms of said deed of trust, inadvertently failed to advertise in said notice that the chattels and personal property described in said deed of trust and in plaintiff's said petition would sell or would be offered for sale on the day and date aforesaid, and for that reason an immaterial defect appears in the notice of said sale. But defendants say that they had no knowledge or information of said defect until after said sale was made, as aforesaid, to the defendant A.S. Ward, and that he bid for and bought all of said property, for value, and in good faith, without any such notice, believing at the time that he was acquiring a good and valid title to all of said property.

"Defendants further state that plaintiff attended and was present in person at said sale. That at said sale the said Cobb, as such trustee, before offering to receive bids for said property, publicly announced and stated that he intended to sell all of the real estate, chattels and personal property described in said deed of trust and in plaintiff's said petition, and for a long time then and there cried the same for sale and received bids therefor, including the final bid of the said S.A. Ward, in the presence and hearing of the plaintiff herein. That said plaintiff stood by and made no protest and gave no warning to the defendant Ward and other bidders thereat, of the said defect in said notice, or of his claim to said property, nor in any other manner made any protest or objection to the sale of the property described in said deed of trust and in plaintiff's petition. And defendants never knew or had information of plaintiff's claim or pretended claim to said property until after the sale of said property was made and concluded as aforesaid to the said Ward.

"Defendants state that if plaintiff intended to claim an interest in said property or question the sale thereof on account of any defect in said notice or for any other reason it was his bounded duty to make known to these defendants and other bidders at said sale such intentions, and before said property was so sold to said defendant Ward, and in so failing the plaintiff tacitly consented to the sale of said property at said time.

"Defendants further say that by reason of the failure of the plaintiff to speak and warn these defendants when it was his duty to speak and warn, as aforesaid, and thereby prevent the said Cobb from selling and the said Ward from buying the property described in plaintiff's petition, the plaintiff is now estopped by such conduct from claiming or asserting any right, title or interest in and to said property.

"Defendants further state that upon the purchase of said property by the said Ward, as aforesaid, and delivery of same to him, as aforesaid, he thereupon placed the said Cobb in possession thereof as a bailee, and the said Cobb had the custody and possession of said property as such bailee for said Ward at the time and date of service of the writ of replevin in this case that since the purchase of said property by said Ward at said sale he has ever been and is...