Dart v. Bagley

• Decision Date: 09 May 1892
• Citation: 110 Mo. 42,19 S.W. 311
• Parties: DART v. BAGLEY et al.
• Court: Missouri Supreme Court

19 S.W. 311

110 Mo. 42

DART v. BAGLEY et al.

Supreme Court of Missouri.

May 9, 1892.

NEWSPAPERS — OFFICIAL DESIGNATION — SALE UNDER TRUST DEED — NOTICE.

Rev. St. 1889, § 312, which provides that judges of certain circuit courts shall constitute boards for the purpose of awarding to a newspaper making the lowest and best bid the publication of "all advertisements, judicial notices, and orders of publication required by law to be made," applies only to publications pertaining to legal or judicial proceedings; and a sale of lands under a power contained in a trust deed was valid, though notice of such sale was published in a paper other than one designated by such judges.

In banc. Appeal from circuit court, Jackson county.

Action by E. M. Dart against V. W. Bagley and others to redeem certain land. From a judgment sustaining demurrers to his petition, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, J.:

This was an action brought by the appellant to redeem certain real estate from a sale made under a power contained in a deed of trust. The appellant, in September, 1891, made his deed of trust to respondent Bagley, as trustee, to secure a certain note therein described, payable to the order of respondent Bunker. The note was not paid at maturity. The power in the deed provided that Bagley might, upon such contingency, sell the land conveyed at public vendue, after first giving "twenty days" public notice of the time, terms, and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in the city of Kansas, Mo." At the time the deed of trust and the sale thereunder were made, Rev. St. 1889 were in force, of which statutes sections 312-314, in relation to advertisements, are as follows: "Sec. 312. Advertisements to be let — When and how. In all cities having a population of more than one hundred thousand inhabitants, a board consisting of the judges of the circuit court of such cities, or of the judicial circuit in which such city is situated, or a majority of the same, shall, on or before the first day of January, 1890, and every two years thereafter, cause to be published in some daily newspaper of said city a notice of at least twenty days, designating when and where said board will receive sealed proposals from daily newspapers published in said city for the publication of all advertisements, judicial notices, and orders of publication required by law to be made. At the time and place so designated, said board, or a majority thereof, shall proceed publicly to open said bids, and shall award the printing of all said publications to the newspaper naming the lowest and best bid: provided, however — First, that said bid shall be accompanied by a good and sufficient bond, in a sum to be fixed by said board, conditioned for the correct and faithful publication in said newspaper of all said advertisements, notices, and orders, in manner and form as required by law, and according to the schedule of rates named in said proposal, and upon said bond suit may be instituted in the name of the state, to the use of any person aggrieved; second, that no paper shall he awarded the contract for said publication, unless it have a bona fide daily circulation of at least three thousand copies; third, that in case said board shall believe that said bids are not sufficiently definite or specific, or that in consequence of combinations, or from any cause, said bids are unreasonably high, it shall be at liberty to reject all proposals, in which case it shall proceed at once to readvertise for proposals, as hereinbefore provided. Sec. 313. Proceedings when contract expires. In case said award for said publication shall not be made until after the then existing contract for said printing shall have expired, the parties interested may, or, in case of proceedings pending in court, the clerks thereof shall, designate in what newspaper the publications required in the mean time to be made shall be printed: and provided, further, that, in case of the suspension of the newspaper to which such contract shall have been awarded, or in case the said contract shall determine from any cause, the said board may proceed, in the manner hereinbefore stated, to make a new award of the publication of such notices, without waiting the expiration of two years. Sec. 314. Advertisements valid, when. The publication of said advertisements, orders, and notices, if made as aforesaid, in the newspaper so designated by said board or clerk, shall be valid and sufficient. But nothing in this chapter contained shall invalidate a publication of said notices, orders, or advertisements published, by mutual consent and agreement of parties in interest, in some other newspaper; but all publications so made and agreed upon shall be as lawful and binding as though made in the newspaper so designated by said board or clerk." And sections 7092, 7093, Rev. St. 1889, are as follows: "Sec. 7092. All sales of real estate, under a power of sale contained in any mortgage or deed of trust executed after this article takes effect, shall be made in the county where the land to be sold is situated, and not less than twenty days' notice of such sale shall be given, whether so provided in such mortgage or deed of trust or not. Sec. 7093. Such notice shall set forth the date and book and page of the record of such mortgage or deed of trust, the grantors, the time, terms, and place of sale, and a description of the property to be sold, and shall be given by advertisement inserted for at least twenty times, and continued to the day of sale, in some daily newspaper, in counties having cities of twenty thousand inhabitants or more, and in all other counties such notice shall be given by advertisement in some weekly newspaper published in such county for three successive weeks, the last insertion to be not more than one week prior to the day of sale; and, if there be no newspaper published in such county or city, such notice shall be published in the nearest newspaper thereto in this state: provided, that nothing herein contained shall be construed to authorize the giving of any shorter notice than that required by such mortgage or deed of trust." For more than one year before January 1, 1890, and at the time of making said deed of trust and sale thereunder, the City of Kansas was a city in the state of Missouri, having a population of more than 100,000 inhabitants, and situate in the twenty-fourth judicial circuit of said state. On the 1st day of January, 1890, in due form, and taking all the steps prescribed by section 312, Rev. St. 1889, supra, the judges of the twenty-fourth judicial circuit, acting as a board, duly let to the Kansas City Times, a newspaper of the kind prescribed in said section, the publication of "all advertisements, judicial notices, and orders of publication required by law to be made," mentioned in said section 312, and the newspaper duly executed its contract and bond to publish the...