Chase v. Williams

• Decision Date: 31 October 1881
• Citation: 74 Mo. 429
• Parties: CHASE et al., Appellants, v. WILLIAMS.
• Court: Missouri Supreme Court

74 Mo. 429

CHASE et al., Appellants,

v.WILLIAMS.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

James Carr and H. S. Priest for appellants.

The mere fact that it was inconvenient for the trustee to sell on the particular day or week requested, does not amount to a refusal to sell. He could have made the desired sale the next week or the next month. There must be an absolute refusal on the part of the trustee chosen by both parties, before the contingency arises which authorizes the sheriff to execute the trust. There was only authority to sell enough land to pay debt, interest and costs; and when the sheriff sold more, he acted without authority, and the sale was null and void. Tatum v. Holliday, 59 Mo. 422; Patterson v. Carneal, 3 A. K. Marsh. 618; Davidson v. McMurtry, 2 J. J. Marsh. 68; Carlile v. v. Carlile, 7 J. J. Marsh. 624; Stover v. Boswell, 3 Dana 235; Addison v. Crow, 5 Dana 277. The appellants, as trustees for the creditors, did not want any more of the land sold than was really necessary to pay the small debt upon it--the sheriff by selling in a lump sacrificed their interest instead of adopting the course most beneficial to the debtor. 59 Mo. 428. This land was susceptible of division into parcels, and if it had been divided and sold in parcels, it would have sold for a great deal more that it did. Chesley v. Chesley, 49 Mo. 540; s. c., 54 Mo. 347; Benkendorf v. Vincenz, 54 Mo. 441; Tatum v. Holliday, 59 Mo. 422; Goode v. Comfort, 39 Mo. 313; Taylor's Heirs v. Elliott, 32 Mo. 172; Henry v. Mitchell, 32 Mo. 512; Sumrall v. Chaffin, 48 Mo. 402; McLaughlin v. Scott, 1 Binney 61. The judgment should be reversed, and the appellants allowed to redeem. H. & St. Jo. R. R. Co. v. Brown, 43 Mo. 294; Parker v. R. R. Co., 44 Mo. 416; Gott v. Powell, 41 Mo. 416; Stewart v. Croes, 5 Gilman 442; Day v. Graham, 4 Mo. 389; Groff v. Jones, 6 Wend. 522; Jackson v. Ludeling, 21 Wall. 616.

Charles A. Winslow and John R. Christian for respondents.

A sale in mass, when the land is shown to be susceptible of division, is not alone sufficient to avoid the sale. Goode v. Comfort, 39 Mo. 313; Carter v. Abshire, 48 Mo 300; Sumrall v. Chaffin, 48 Mo. 402; Chesley v. Chesley, 49 Mo. 540; s. c., 54 Mo. 347; Benkendorf v. Vincenz, 52 Mo. 441. The burden of proof is on the party attacking a trustee's sale, though it seems otherwise in regard to a sheriff's sale. Kelley v. Hurt, 61 Mo. 469. Here the debtor has no interest and is not complaining; the controversy is between creditors of a common debtor; no equities peculiar to the debtor can avail the plaintiffs. Young v. Ruth, 55 Mo. 515. Plaintiffs did not offer to redeem the note held by Christian. When plaintiffs saw that the court was about to dismiss their bill, they voluntarily asked judgment for the surplus, to which defendants agreed, and the court changed its judgment accordingly. This was a judgment of their own asking, and they cannot now be heard on appeal from it. Kinealy v. Macklin. 67 Mo. 95.

NORTON, J.

This is a suit instituted in the circuit court of Randolph county for the purpose of setting aside a sale made under a deed of trust and redeeming the property. It is alleged in the petition that G. W. Morehead was, on the 6th day of April, 1870, the owner of certain real estate described in the petition, containing 290 acres; that on said day he sold and conveyed said real estate to “the North Missouri Coal & Mining Company in fee for the consideration of $14,500, of which $1,000 was paid cash, and for the remainder it executed thirteen promissory notes for $1,000 each, payable respectively in three, six, nine, twelve, fifteen, eighteen, twenty-one, twenty-four, twenty-seven, thirty, thirty-three, thirty-six and thirty-nine months, and one note for $500 in forty-two months, with interest from date at the rate of eight per cent per annum; and secured the payment of said notes by a deed of trust with the usual conditions on said real estate to Thomas Shackelford, as trustee; that there was a condition in said deed of trust, that if said Shackelford refused to act in said trust, then the sheriff of said county might act in the execution thereof; that on the 1st day of July, 1874, said North Missouri Coal & Mining Company executed a mortgage, among others, upon said real estate to appellants, as trustees, to secure bonds to the amount of $75,000, issued by said company; that said company paid off all the said notes to Morehead except the last note for $500 and interest thereon, of which said note defendant Christian got possession and control, claiming to have purchased it, and under the pretext that Shackelford, the trustee, refused to execute the said trust, procured defendant Williams, the sheriff of said county, to advertise said real estate for sale on the 8th day of September; that on said day the whole of said land was sold in one body for the sum of $2,175, to defendants Christian, Denny and Keebaugh, which was much less than its value; that said real estate was susceptible of division into parcels, and that one of the parcels would have been sufficient to have paid off said note, interest and costs; that the sheriff was requested by a responsible bidder to sell the land in parcels, which he declined to do, acting under the advice and influence of defendant Christian; that there was no competition at the sale; that the sheriff did not make said sale fairly and impartially, but confederated and colluded with defendant Christian so as to enable him to purchase all of said land at a comparatively nominal price; that said real estate was worth at the time of the sale $15,000. It is also averred that plaintiffs, through their agent Phillips, offered to pay said Christian said note, interest and costs on the day of sale and prior thereto, which he refused to accept; that the North Missouri Coal & Mining Company was insolvent.

Defendants Christian, Denny and Keebaugh filed separate answers, denying each and every material allegation of the petition, and alleged “that they were the owners of said real estate, having bought the same at a sale made by the sheriff of Randolph county by virtue of two executions issued by the clerk of the circuit court of Chariton county in favor of James Bailey and S. A. Flagler, and against the North Missouri Coal & Mining Company; that at the time of the sale under said deed of trust, they, being the owners of the right, title and interest of the North Missouri Coal & Mining Company, demanded that the said real estate be sold in a lump, believing that the same could be sold to a better advantage than to sell the same in any other way; that at said sale it brought its full value, and if it had been sold in any other way, all parties interested would have been injured thereby.” Upon a trial of the cause the court found the issues for defendants, and rendered a decree dismissing the bill, and in the decree so rendered, on plaintiff's motion and with the consent of defendants, further decreed that the sheriff, as trustee, pay over to plaintiffs the surplus proceeds of the sale remaining after the payment of the $500 note, interest and cost of suit. From this anomalous decree and judgment plaintiffs have appealed and insist upon a reversal of the judgment on these grounds: 1st, That the sheriff had no authority to make the sale; 2nd, That if he had authority to sell, such authority was exercised by him to the damage and detriment of the debtor, in this, that the land was sacrificed by being sold in one body, when it was susceptible of division and could have been more advantageously sold in parcels; 3rd, That the sale was vitiated by fraud and collusion between defendants Christian, Denny and Keebaugh, and the sheriff making it. We will dispose of these objections in the order they are stated.

1. DEED OF TRUST: trustee declining to act: sale by substitute.

Mr. Shackelford was the trustee in the deed of trust under which the sale was made, and was authorized by the deed to sell the property in question, in the event of the non-payment of the notes and interest which the deed was given to secure. It was further provided in said deed that in the event of the...