Carter v. Abshire

• Decision Date: 31 August 1871
• Citation: 48 Mo. 300
• Parties: MARGARET CARTER et al., Plaintiffs in Error, v. JOHN A. ABSHIRE et al., Defendants in Error.
• Court: Missouri Supreme Court

48 Mo. 300

MARGARET CARTER et al., Plaintiffs in Error,

v.JOHN A. ABSHIRE et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1871.

Error to Fifth District Court.

J. F. Asper, for plaintiff in error, among various points urged, contended that the trustee did not strictly pursue his authority in the matter of notice. Putting up notices on four sides of the square was not putting them up in four public places in the city of Chillicothe. The court-house was more public, and it was usual to put notices on the door. People from all parts of the country visited there. The post-office, where all the people of the town went, and the railroad station, all would have been more public, and would have better served to bring the sale home to more people. (Denning v. Smith, 31 Johns. Ch. 332; Stein v. Wilkinson, 10 Mo. 75; Gray v. Howard, 14 Mo. 341; 1 Washb. Real Estate, 526-8; Powers v. Kueckhoff, 41 Mo. 425; 1 Sugd. Vend. 63.)

The consideration paid for the farm was totally inadequate. The case comes within the rule of Goode v. Comfort, 39 Mo. 313.

McFerran & Collier, for defendant in error.

I. The sale by Collier as trustee is not affected by the fact that the land was sold in a body, instead of the smaller legal subdivisions, in the absence of proof showing that it would have brought a higher price had it been sold in forty-acre tracts. (8 Mo. 460; 30 N. Y. 173.)

II. The title conveyed to Abshire by the trustee's deed is unaffected by fraud, negligence or injury to the plaintiff, and the plaintiff's petition is destitute of equity, considered in the light of the evidence in the cause. (2 U. S. Dig. 635, § 564; 4 Johns. 527.)

III. As to sustaining demurrer and motion to strike out, plaintiffs waived the same by pleading error. (Weldon's Adm'r v. Hobbs, 42 Mo. 537.)

IV. As to misjoinder in praying to set aside title for rents and profits and for possession, see 41 Mo. 257; 43 Mo. 139; id. 179.

WAGNER, Judge, delivered the opinion of the court.

A point is raised in reference to the action of the Circuit Court in its rulings with respect to the pleadings, but we see nothing in that regard requiring revision.

As the pleadings stood when the trial was had, the plaintiffs were enabled to go into, and did go into, their whole case. All the evidence they had was introduced and submitted, and, had it been deemed sufficient, would have entitled them, under the issues made, to appropriate relief.

The suit was in the nature of a bill in equity, seeking to redeem certain real estate situate in Livingston county, and to set aside a sale made by a trustee. From the record it is shown that L. R. Carter, on the 10th day of September, 1861, made and delivered to L. T. Collier, as trustee, a deed of trust on 240 acres of land, to secure to the Bank of the State of Missouri the sum of $1,356.32, payable six months after date, with eight per cent. interest, and dated on the 13th day of September, 1861. Default having been made in the payment of the debt and interest, Collier, the trustee, at the request of the bank, advertised and sold the premises on the 22d day of February, 1864. At the sale Abshire became the purchaser of the land, paying therefor the sum of $1,600, and afterward, in April, 1866, he sold the same to Philip Swank for $5,000. Swank entered into possession, and has occupied the same ever since. Carter, the grantor in the deed of trust, died before the sale by the trustee took place, and this proceeding is instituted by his widow and legal representatives.

The grounds mainly relied on to invalidate the sale are, that the trustee did not give the requisite notice; that he sold the land in gross when he should have divided it and sold it in forty-acre lots; and inadequacy of consideration.

The deed of trust provided that the trustee, if he proceeded to sell, should give notice by setting up four written handbills in four public places in the city of Chillicothe. The trustee, in compliance with this provision, set up four written handbills on the four sides of the public square in Chillicothe. It is now contended in argument that there are places more public than the sides of the public square, and that would better impart notice. But no evidence was introduced of this fact, and the court cannot be expected to take judicial notice of it. It is not denied that the four sides of the public square are public places, and if so, the requirement in the deed is satisfied. The trustee in his deed recites that he put up the notices in public places, and, by the terms of the trust deed to him, his recitals are prima facie evidence of everything contained therein. Till they are rebutted or overcome by countervailing evidence, full faith and credit must be attached to them.

The next question is whether the action of the trustee in selling the land altogether, instead of separating and...