Davis v. Hess
| Decision Date | 02 February 1891 |
| Parties | Davis et al. v. Hess, Appellant |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court. -- Hon. D. A. DeArmond, Judge.
Affirmed.
Gantt & Casey and T. B. Wheeler for appellant.
(1) The court erred in holding that the deed of trust of December 22 1885, conveyed the south half of section 9. (2) The court erred in not giving instruction, numbered 1, as asked by defendant. Kane v. McCown, 55 Mo. 181; Herndon v. Hawkins, 65 Mo. 265; Bouldin v. Ewart, 63 Mo. 330; Hambright v. Brockman, 59 Mo. 52; Napton v. Hurt, 70 Mo. 497; Goff v Roberts, 72 Mo. 570. (3) The court erred in refusing to declare the law as prayed in defendant's second instruction. (4) The court likewise erred in refusing defendant's third and fourth instructions. The fifth instruction should have been given as asked by defendant. Stafford v. Fizer, 82 Mo. 393. (5) The court erred in giving instructions of its own motion. "When the execution of a power is prescribed by a particular method, it implies that the mode proposed is to be followed, and it contains a negative upon every other mode." 4 Kent's Com. [2 Ed.] 148; Ivy v. Gilbert, 2 P. Wms. 13; Mills v. Banks, 3 P. Wms. 1; 2 Jones Mortgages, 1907; Bigler v. Waller, 14 Wall. 297; Graham v King, 50 Mo. 22; Landrum v. Bank, 63 Mo. 51. (6) Again, said instruction is bad in that it attempts to validate said sale because Hess, the mortgagor, was present. The whole proceeding was conducted without his assent, and without anything said or done by him that would estop him from demanding that his title should be divested strictly in accordance with his deed. Spurlock v. Sproule, 72 Mo. 503; Monks v. Belden, 80 Mo. 639; Acton v. Dooley, 74 Mo. 63. (7) The conduct of the sheriff, Payton, was oppressive. His demand, that $ 6,700 should be paid in thirty minutes, was harsh and unreasonable, and demonstrates that he had no conception of the duty of a trustee. Besides, he never tendered the first bidder a deed. He had no right to demand the money until he tendered Mrs. Hess her deed on her bid. "The law will not permit a trustee to be a nose of wax, a mere figure-head in the hands of a creditor." Vail v. Jacobs, 62 Mo. 130; 2 Jones on Mortgages [2 Ed.] secs. 1614, 1866, 1906; Goldsmith v. Osborne, 1 Edwds. New York Ch. 560. (8) There is no innocent third person in this case.
J. H. Lay and W. S. Shirk for respondents.
(1) While the advertisement of the sale under the deed of trust recites the date of the deed of trust incorrectly, it refers correctly to the book and page where it is recorded. So that no one could be misled or any injury done. But, in the execution of a power, any reference showing an intention to execute it is sufficient. Reilley v. Chouquett, 18 Mo. 220; Collier's Will, 40 Mo. 287; Hazel v. Hogan, 47 Mo. 277; Peas v. Iron Co., 49 Mo. 124; Turner v. Timberlake, 53 Mo. 371; Porter v. Schofield, 55 Mo. 56; Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 Mo. 439. And a false reference should surely be disregarded when there is a true one giving ample notice of the power. Failure to mention name of grantor in advertisement does not affect the validity of the instrument. Ohnsburg v. Turner, 87 Mo. 127. (2) A mortgagee may recover possession after the debt is due without foreclosing, and the same rule seems to apply to a trustee in a deed of trust in the nature of a mortgage. Johnson v. Huston, 47 Mo. 227; Siemers v. Schrader, 88 Mo. 20; Davis v. Bessehl, 88 Mo. 439; Masterson v. Railroad, 72 Mo. 342; In re Mayfield, 17 Mo.App. 684, on 688; Campbell v. Allen, 38 Mo.App. 27. (3) The description, south half and the east half of the northeast quarter of section 9, is ambiguous. It may mean four hundred acres or one hundred and twenty; but cannot be construed to mean other than four hundred acres when read in connection with the total number of acres called for in the deed of trust and trustee's deed, viz., five hundred and forty. Burnett v. McCluey, 78 Mo. 676; Prior v. Scott, 87 Mo. 303; Deal v. Cooper, 94 Mo. 62; Wolf v. Dyer, 95 Mo. 545; Baxter v. Wilson, 95 N.C. 137. And where a description is equivocal it will be construed favorably to the grantee. Martindale on Conveyancing, sec. 99, and cases cited. (4) A trustee cannot sell again on same day when the bidder fails to pay (Barnard v. Duncan, 38 Mo. 170; Dover v. Kennerly, 38 Mo. 469; Judge v. Booge, 47 Mo. 544), without announcing at first sale that he will resell at a given time unless the bid is paid at that time. Judge v. Booge, 47 Mo. 544; Bank v. Sternberg, 3 Mo.App. 568. (5) In cases where deeds of trust have provided for sales at the courthouse door, and at the time of sale no court-house in the strict sense of the word, that is no house built, and used by the state authority exclusively for judicial purposes, was in existence, the courts have upheld sales made in a variety of ways, and at places called courthouse doors in a variety of senses. Kane v. McCown, 55 Mo. 181; Hambright v. Brockman, 59 Mo. 52; Bouldin v. Ewart, 63 Mo. 330; Napton v. Hurt, 70 Mo. 497; Goff v. Roberts, 72 Mo. 570; Johnson v. Cock, 35 N.W. 406; 37 Minn. 530. After the great fire in Chicago, the supreme court of Illinois held that trustees' sales should be made at the ruins of the old courthouse (Waller v. Arnold, 71 Ill. 350; Chandler v. White, 84 Ill. 435), and at the building in temporary use as a courthouse. Gregory v. Clark, 75 Ill. 485; Alden v. Goldie, 82 Ill. 581; Wilhelm v. Schmidt, 84 Ill. 183; 2 Jones on Mortgages, sec. 1848, et seq. A sale made at a place where sales were commonly made was held good where the description of the place of sale was indefinite in the deed of trust. Hornby v. Cramer, 12 How. Pr. (N. Y.) 490. (6) Appellant cannot try his case on one theory in the court below and on a different one here. Newton v. Miller, 49 Mo. 298; Davis v. Brown, 67 Mo. 313; Whetstone v. Shaw, 70 Mo. 575; Noble v. Blunt, 77 Mo. 241; Walker v. Owen, 79 Mo. 563; Howes v. Braidwood, 82 Mo. 617; Fell v. Coal Mining Co., 23 Mo.App. 216.
This is an action of ejectment commenced by David E. Davis and George C. Heard against the defendant Hess to recover seven hundred acres of land in Benton county. The plaintiff Davis obtained judgment and defendant appealed.
The defendant Hess, by his deed, dated first of September, 1883, conveyed to Chapman one hundred and sixty acres of the land in suit, in trust to secure four notes amounting to $ 2,000, all payable to Scotchbrook. Default having been made, the trustee sold the land on the seventh of March, 1887, and the plaintiff Davis became the purchaser. On the twenty-second of December, 1885, the defendant made another deed conveying the remaining five hundred and forty acres to plaintiff Heard, in trust to secure three notes amounting to about $ 8,000, payable to plaintiff Davis, and on the fifth of February, 1887, the sheriff of Barton county, acting as trustee, sold the land to George Davis who conveyed the same to the plaintiff, David E. Davis.
The plaintiff Davis, it will be seen, claims title to all of the land through these deeds of trust and the sales made thereunder. The defense is that the sales were illegal for various reasons, and should be set aside, though there is no offer to redeem. Several questions are made concerning the sale of the five hundred and forty acres which are not common to the other sale, and these questions will be considered first.
1. The description of the lands in this deed of trust upon the five hundred and forty acres begins with these words: "The south half and the east half of the northeast quarter of section 9," and, after describing several other parcels in different sections by sectional subdivisions, concludes, "containing in all five hundred and forty acres."
The plaintiff contends that the description of the lands in section 9 means the south half of section 9, and the east half of the northeast quarter of section 9, thus conveying four hundred acres; while the defendant insists that the words, south half, as well as east half, refer to the northeast quarter. This construction would, at first, appear to convey two eighty-acre tracts, but it only includes one hundred and twenty acres, for one forty-acre tract is common to both eighties. The rule of law is well settled that the call for quantity may be resorted to for the purpose of making that certain, which otherwise would be uncertain, and especially is this true where the lands are described by sectional subdivisions as in the case in hand. Burnett v. McCluey, 78 Mo. 676; Prior v. Scott, 87 Mo. 303; Wolfe v. Dyer, 95 Mo. 545, 8 S.W. 551. If we read the description of the lands in section 9 as conveying the south half of section 9, and the east half of the northeast quarter of the same section, we avoid a double description of any part thereof, and the land conveyed will also conform to the call for quantity. That this is the true meaning, and the one which conforms to the intention of the parties to the deed, we have no doubt whatever. In deeds as well as in wills and contracts, we are to determine the intention of the parties thereto, and that is done by taking the instrument as a whole.
2. The deed of trust provides that, in case of the absence of Heard the trustee, from the county of Benton, or in case of his refusal to act, the sheriff of Benton county, may sell under the terms thereof. As Heard was absent from the state and refused to act as trustee in making the sale, there can be no doubt but the sheriff had the right to sell. But it is insisted that this sale made by him should be set aside because of the conceded fact that he made proclamation that the purchase price must be paid to him in thirty minutes after the sale. This conduct, on the part...
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