Dunham v. Hartman

• Citation: 153 Mo. 625,55 S.W. 233
• Parties: DUNHAM v. HARTMAN.
• Decision Date: 05 February 1900
• Court: United States State Supreme Court of Missouri

55 S.W. 233

153 Mo. 625

DUNHAM v. HARTMAN.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

DEED OF TRUST — FORECLOSURE SALE — SHERIFFS — MEMORANDUM OF SALE — STATUTE OF FRAUDS.

1. In an action to recover the price, a sheriff's memorandum of sale in proceedings to foreclose a deed of trust by sale is not admissible till it is shown that the trustee refused to act; the deed of trust merely providing that, if the trustee refused to act, then the sheriff might proceed to foreclose by sale.

2. Where the sheriff, in an auction sale, is agent of the bidder as well as the owner, his authority to make a memorandum of the sale ceases on the bidder refusing, before the memorandum is made, to complete the purchase.

3. Under a deed of trust providing that, if the trustee refuses to act, the sheriff may proceed to foreclose by sale, the sheriff is only a substituted trustee, acting in his individual, and not his official, capacity, and has no authority to bind the bidder by any memorandum he may make.

Appeal from circuit court, Johnson county; W. W. Wood, Judge.

Action by W. S. Dunham against W. H. Hartman. Judgment for defendant. Plaintiff appeals. Affirmed.

Jas. A. Kemper and Burnett & Barnett, for appellant. O. L. Houts, for respondent.

VALLIANT, J.

This is a suit to recover of defendant damages for refusing to complete a purchase of land which it is alleged was struck off to him on his bid at a foreclosure sale under a deed of trust. Upon the trial, at the close of the plaintiff's evidence, the court instructed the jury that under the evidence the plaintiff was not entitled to re cover. Plaintiff took a nonsuit, with leave and, after an ineffectual motion to set the same aside, brought this appeal. The evidence tended to show that in 1892 the then owners of the land executed a deed of trust to one Young, trustee, to secure a debt therein specified, subject to prior incumbrances referred to. It was provided in the deed that in case of Young's inability or refusal to act when the debt was due, and payment not made, the then acting sheriff of Johnson county might proceed to foreclose by sale, etc., as therein directed. Young did decline to act and the holder of the debt and deed of trust requested the plaintiff in this suit, who was then the sheriff of that county, to proceed to sell according to the requirements of the deed, which he did. It was an auction sale at the court-house door, conducted by the sheriff in person, assisted by one of his deputies, who read the advertisement for him. At this auction the defendant bid $3,050, and the property was struck off to him. The parties went from the place of sale to the sheriff's office, apparently to close the matter, and the defendant was about to write a check for the amount of his bid, when it was suggested by some one present that the sale was made subject to the prior incumbrances. Then defendant said that he "did not figure it that way," and would go and see about it. He then went out, and returned in about two hours, and said he would not take the property unless he was compelled to. After that the sheriff readvertised, and held another auction sale, at which the property was struck off to M. C. Shryack and C. H. Harrison, the highest bidders, for $725, which sale was consummated. The second sale was about a month after the first. Plaintiff offered in evidence the following: "I now offer in evidence this memoranda, found on page 270 of the sheriff's sale book, — the memoranda made by the sheriff, and the one made by the deputy sheriff, so far as can be ascertained, — which memoranda is in words and figures as follows, to wit: `Sold to W. H. Hartman for $3,050.00, Sold to M. C Shryack and C. H. Harrison.'" Defendant objected to this as evidence, and the court sustained the objection. Up to this time there had been no evidence of the refusal of the trustee to act, and the request of the holder of the note that the sheriff execute the trust; but such evidence immediately followed the ruling excluding the memorandum, but the memorandum was not again offered. Just when and by whom the memorandum was made is not certain. The deputy sheriff testifies that he made it as soon as the land was struck off to the defendant, while the sheriff testifies that he made it himself after the defendant returned to his office the second time, and informed him that he would not take the land if he was not compelled to, which was about two hours after the auction was over. The next day a deed was tendered to defendant, which he refused. What else, if anything, was on the page 270 mentioned, besides the memorandum read, is not shown by the evidence. There was testimony tending to show that, before offering the property for sale, the sheriff announced that it was to be sold subject to the incumbrances. Whether or not defendant was within hearing at that time, does not appear. This was substantially all that the evidence tended to prove.

1. If we assume that the sheriff was the implied agent of the defendant, and as such authorized to make the memorandum required by the statute of frauds to bind him, the plaintiff's case fails, because the memorandum attempted to be shown in evidence is itself insufficient. All that we are told of the memorandum is that it was made on the sheriff's sales book, and is in these words: "Sold to W. H. Hartman for $3,050.00." It was, perhaps, intended to be shown that this memorandum was written on a page in the book in which was the notice of sale, containing the names of the parties and a description of the property; but, if the page contains anything of that kind, it was not offered in evidence, and the record does not show it. In Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800, it is said, "All the authorities are agreed that the memorandum must state the contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself, without resort to parol evidence." This memorandum does not show what was sold, nor for whom the sale was made. Besides, we are left in doubt, between the plaintiff's two main witnesses, as to who made the memorandum, and when it was made. Ordinarily, when the sheriff is acting officially, it makes no difference whether he or his deputy does the act; but in this instance it does make a difference, because, if the...