Dunn v. McCoy

• Decision Date: 14 June 1899
• Citation: 52 S.W. 21,150 Mo. 548
• Parties: DUNN v. McCOY.
• Court: Missouri Supreme Court

52 S.W. 21

150 Mo. 548

DUNN v. McCOY.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

EJECTMENT — EQUITABLE DEFENSES — MORTGAGES — SALES — VACATION — GROUNDS.

1. When an equitable answer is interposed in an action of ejectment, the case is triable as a suit in equity.

2. A sale to a third person under a trust deed will not be set aside on the ground of accident

and surprise consisting simply of a failure of the debtor to raise the money necessary to redeem within the time limited, through being unable to find the person who had agreed to loan him the money, especially where the debtor made no attempt to get the money until three days before the sale.

3. Nor will such sale be set aside because the trustee refused to postpone the sale two days, there being no assurance that the debtor could raise the money.

4. A provision in a deed of trust of several tracts requiring the property to be sold in bulk in case of default is valid, and the trustee's sale thereunder to a third person will not be set aside on the ground that the property brought less than it would if sold by parcel, and that the debtor was compelled to consent to have the provision inserted in the deed because he was in dire financial need, and could get the money of no one but the creditor.

Appeal from circuit court, Harrison county; P. C. Stepp, Judge.

Action by William M. Dunn against Benjamin M. McCoy. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action in ejectment to recover 1,320 acres of land in Harrison county. The petition is in the usual form. The answer, after admitting that the defendant was in possession of the land, denied the other allegations of the petition, and, by way of cross bill, alleged that the plaintiff claimed title through a trustee's sale under a deed of trust executed by defendant and his wife to Joseph P. Slatten, and prayed that the sale be set aside, and defendant be permitted to redeem the land, for the reasons stated in the answer and cross bill. The answer further alleged, in substance, that the deed of trust under which plaintiff claimed title was executed by defendant and his wife on December 2, 1893, to George W. Wanamaker, trustee, to secure a note of $10,000 to Joseph P. Slatten; that, at the time of the execution of said deed of trust, defendant also executed a second deed of trust on said lands to secure $15,800 to the estate of James W. Anderson, deceased; that it was understood by all the parties that the Anderson deed of trust was to be executed as a second lien upon the land; that thereafter defendant paid to Slatten $800 on the debt secured by the deed of trust here in question, being the amount of one year's interest thereon; that thereafter the trustee in said deed of trust advertised said lands for sale on the 30th day of September, 1896, and that the beneficiaries in said second deed of trust promised and agreed with defendant that they would redeem said lands from the first deed of trust, and prevent the sale thereof, and that defendant relied upon this agreement with said beneficiaries in the second deed of trust, and fully believed that they would carry it out and prevent the sale; that before the sale said Joseph P. Slatten, beneficiary in said deed of trust under which plaintiff claims, agreed with defendant that if he would pay the interest then due, amounting to about $1,500, at any time before the sale, he would postpone the sale and extend the time of payment of the mortgage debt for one year; that thereupon defendant, fearing that the second mortgagees would not carry out their agreement to redeem the land, began to make arrangements for raising the money with which to pay the amount agreed on between him and Slatten; that, owing to the stringency of the money market and the financial depression prevailing, it was impossible for him to raise the amount required, in Harrison county, and he applied to friends in Chicago, and made arrangements with them to furnish the money when required; that on September 29, 1896, being the day before the sale, he arrived in Chicago for the purpose of procuring the money which had been promised him; that upon his arrival he discovered, to his surprise, that the man from whom he was to get the money was absent from the city, and would not return for two days; that he immediately sent a telegram to the trustee, requesting him to postpone the sale for two days, and the amount agreed upon between defendant and Slatten would be paid; that the trustee received this telegram before the sale, and showed it to Slatten, the beneficiary, and that said beneficiary and said trustee, notwithstanding the request of defendant and the promise of Slatten, refused to postpone or continue the sale; that had the party having the money not been absent, as defendant had no reason to expect or believe, he would have procured the money, and paid the amount agreed upon to postpone the sale, but, meeting with said accident, he was prevented from so doing, otherwise the amount would have reached the trustee and beneficiary in time to prevent said sale. The answer further alleged that said lands are composed of numerous tracts, some of which are isolated from the others, and a long distance from each other; that upon said tracts were situated numerous separate and distinct buildings and other improvements, and upon one of said tracts was situated a steam mill; that said lands at the time of the advertisement thereof by said trustee, and at the time of the sale, were of the total value of about $40,000; that said trustee, in violation of his duty as a trustee for defendant, and in violation of defendant's rights, advertised and stated in the published notice of sale that all of said lands would be sold in one parcel, as a whole tract, without dividing the same; that, by reason of said statement of said trustee in his notice of sale, persons who would have purchased the several distinct parcels or tracts of said lands were prevented and deterred from attending said sale or bidding upon said lands; that on said 30th day of September, 1896, the said trustee, in pursuance of said notice, exposed all of said lands for sale in gross, and stated to the persons there present at said sale that said lands contained 1,320 acres, and that they would only be sold as one tract; that said lands were stricken off and sold to Campbell Crossan for the sum of $13,000, being about $1,400 in excess of the mortgage debt, interest, and costs, and expenses of sale; that thereupon the trustee executed a deed to Crossan, and the latter at the same time executed to plaintiff a quitclaim deed for the lands for the expressed consideration of $100; that if the trustee, in his said notice of sale, and at said sale, had offered said tracts or parcels of land for sale separately or in parcels, as it was his legal and official duty to do, not more than one-half of said lands would have been required to be sold to pay said indebtedness; that said trustee, in selling said lands as one parcel, without dividing the same, claims to have acted by authority of a provision inserted in said deed of trust authorizing and directing him to do so, but defendant avers that said provision was harsh, inequitable, and illegal, and that the same was inserted in said deed of trust, by the said beneficiary therein, by unjustly and oppressively taking advantage of the situation and necessities of this defendant, for the purpose and with the intent on the part of the said beneficiary of wresting from this defendant his property, and of depriving him of his equity of redemption in so much of said property as was wholly unnecessary to be sold for the payment of said debt and interest; that by reason of the facts aforesaid no title passed to plaintiff by reason of the conveyance from the trustee to Crossan and from Crossan to plaintiff, and that the same was inoperative for any other purpose than as an equitable assignment to said plaintiff of the claims of said Slatten to said lands; that by reason of the wrongful acts of said trustee, and of said beneficiary in said first-named deed of trust, hereinbefore stated, said lands were sacrificed and sold for less than one-half of their real value, and that said trustee exceeded his power and authority, by selling lands which were not necessary for the payment of said debt, and which were greatly in excess of the amount necessary to be sold for the payment thereof; and that his pretended sale of all of the lands for that purpose was illegal and void. Wherefore defendant prays the court by its judgment and decree to cancel, annul, and set aside said pretended sale and conveyance from the trustee to Crossan and from Crossan to plaintiff, and to take an accounting of the amount due the plaintiff by reason of the equitable assignment aforesaid, and that defendant be permitted to redeem said lands from said sale; and the defendant here now offers to pay to said plaintiff, or into court for him, the amount which the court shall, upon a hearing, ascertain and adjudge to be equitably due to him, upon any day which shall be by the court named in its decree; and that upon such payment to the plaintiff, or into court for his use, this defendant may be reinvested with the full title to said lands, and for further relief, etc. The reply of plaintiff admitted the allegations of the answer as to the execution of the deed of trust, and as to the sale of the lands in gross, but denied that said lands were composed of numerous tracts, or that they were isolated, but alleged that they lie contiguously, and practically in one body. The reply also alleged that the sale was regular, and that Crossan acted as the agent of plaintiff in purchasing said lands, and that plaintiff paid to Crossan $13,000, and took a deed from him to the lands. Upon the hearing of the cause the court, sitting as a chancellor, found the issues for the defendant on his cross bill, and rendered a...