Dunn v. McCoy
| Decision Date | 14 June 1899 |
| Parties | Dunn, Appellant, v. McCoy |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. P. C. Stepp, Judge.
Reversed and remanded (with directions).
D. J. & W. L. Heaston and Crosby Johnson for appellant.
(1) The right to contract is a vested right, and where the parties are competent, and the contract and subject-matter legal at the time the contract is made, it is beyond the power of the State to annul it, or deprive the parties to it of its fruits. State v. Loomis, 115 Mo. 307; State v Julow, 129 Mo. 163; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; Arnold v. Willis, 128 Mo. 145; Scotland Co. v. Railroad, 65 Mo. 123; Cooley on Const. Lim., sec. 362; Towle v. Railroad, 47 Am. Dec. 153; Strong v. Clem, 74 Am. Dec. 200; Bishop on Contracts, sec. 567. (2) If the State, itself, can not destroy a vested right on the part of a person competent to contract, it is beyond the power of its courts to do so except for fraud, mistake, etc. Mo. Hist. Soc. v Academy, 94 Mo. 459; Ames v. Scudder, 83 Mo. 189; s. c., 11 Mo.App. 168; Jordan v. Beal, 51 Ga. 602. (3) If the contract is not illegal, and the parties were competent, and there was no fraud, mistake or duress, the courts must enforce the contract, and can not set it aside because they would deem it unwise or unreasonable. Blaine v. Knapp Co., 140 Mo. 241; Story v. Conger, 36 N.Y. 673; Fruin v. Railroad, 89 Mo. 397. (4) A court of equity has no power to make a contract for parties different from that they have made for themselves. Smith v. Jordan, 97 Am. Dec. 232; Lipscomb v. Ins. Co., 138 Mo. 17; Blaine v. Knapp Co., 140 Mo. 241; Norton v. Bohart, 105 Mo. 615; Adams v. Schnader, 155 Pa. St. 394; Sachleben v. Wolfe, 61 Mo.App. 36; Hempler v. Schneider, 17 Mo. 258; Wirt v. Schumm, 67 Mo.App. 173. (5) The power of sale conferred on a trustee by a deed of trust must be followed strictly, literally and precisely in all its details. Harkness v. Scammon, 48 Mo.App. 136; Perry on Trusts, sec. 602; Pomeroy's Equity, sec. 1062; Wolf v. Ward, 104 Mo. 128; Gray v. Shaw, 14 Mo. 341; Schanewark v. Hobrecht, 117 Mo. 22; Stewart v. Brown, 112 Mo. 171; Lewis v. Whitten, 112 Mo. 318. (6) The fact that land, conveyed by a deed of trust, is sold in gross is not per se sufficient ground to avoid the sale; much less could it be so, if the deed of trust provides that the trustee shall sell it that way. Hardwick v. Hamilton, 121 Mo. 565; Gray v. Shaw, 14 Mo. 341; Goode v. Comfort, 39 Mo. 313; Benkendorf v. Vincent, 52 Mo. 44; Million v. McKee, 9 Mo.App. 344; Hogan v. Hudson, 67 N.W. 1081. A statutory provision that a sheriff may sell by parcels is merely directory. Sheehan v. Stack-house, 10 Mo.App. 469; Clark v. Stilson, 36 Mich. 482. As the deed of trust prescribed the sale should be in gross the trustee could sell in no other way, without making the foreclosure irregular. Hunt v. Townsend, 31 Md. 336; Perry on Trusts, secs. 602, 783 and 785. (7) Mere inadequacy of price, unaccompanied by fraud or unfair dealing is not a sufficient ground for setting aside a sale under a deed of trust. Orr v. McKee, 134 Mo. 78; Harlan v. Nation, 126 Mo. 97; Malone v. Webb, 112 Mo. 575; Lipscomb v. Ins. Co., 138 Mo. 17; Phillips v. Stewart, 59 Mo. 491; Hardware Co. v. Building Co., 132 Mo. 454; Walter v. Herman, 99 Mo. 529; Hannibal v. Brown, 43 Mo. 294; Briant v. Jackson, 99 Mo. 585; 2 Jones on Mortg. (5 Ed.), sec. 1915.
J. C. Wilson, J. W. Peery and D. P. Stubbs for respondent.
(1) The agreement between Slatten and defendant, that if defendant would pay the interest at any time before the sale, the sale would be postponed and the time of payment of the mortgage debt extended for one year, was a valid and binding agreement, and the payment of the amount would have postponed the sale, the same as if the whole amount of the mortgage debt had been paid. Swon v. Stevens, 143 Mo. 384. (2) The defendant is entitled to relief, on the ground of accident and surprise. Bostwick v. Stiles, 35 Conn. 195; Kopper v. Dyer, 59 Vt. 477; Holdsworth v. Shannon, 113 Mo. 522; 1 Story Eq. Jur., sec. 78; 2 Pom. Eq. Jur., secs. 823, 824 and 833; Adams v. Haskell, 10 Wis. 123. "By the term accident is here intended not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force; but such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party." 1 Story Eq. Jur. (12 Ed.), sec. 78; 2 Pom. Eq. Jur., sec. 823. (3) Under the circumstances of this case it was the duty of the trustee to have complied with the request of the defendant to adjourn the sale. The trustee was thoroughly conversant with all the facts; he knew that Slatten had agreed to stop the sale if all the interest was paid; he knew that the Indiana executors had agreed to take up the first mortgage, or to pay up the interest and prevent the sale; he knew that defendant had relied upon this agreement up to a few days before the sale; he knew that the defendant had been exerting himself to the utmost to raise the money; that he was then in Chicago for that purpose; the character of the telegrams which he received was sufficient to advise him that there was some good reason why the money could not reach Bethany in time to prevent the sale. He knew that under the terms of the deed of trust, as he construed them he was going to sell all these lands as one parcel, and in a manner which in the very nature of the case would prevent competition, and cause one-half of the lands to be sacrificed. Judge v. Booze, 47 Mo. 544; Vail v. Jacobs, 62 Mo. 130; Meyer v. Ins. Co., 5 Mo.App. 245; Bales v. Perry, 51 Mo. 452. (4) The provision in the deed of trust that the trustee should sell the land in one parcel will not be sustained when a literal compliance with it results, as in this case, in great injury to the mortgagor. (a) This provision is opposed to the whole policy of the law of this State in regard to forced sales of property under executions, or deeds of trust and mortgages with power of sale. As to sales under executions, the statute expressly provides that the land shall be sold in subdivisions. R. S. 1889, sec. 4929. Under this statute it has been uniformly held that if a sale of lands en masse results in injury to the debtor, it will be set aside on motion or by bill in equity. Kelly v. Hurt, 61 Mo. 468; Bauldin v. Ewart, 63 Mo. 330. The same rule has been uniformly applied by this court to sales under deeds of trust or mortgages. It is the duty of the trustee to sell in parcels if that method of sale will realize the largest amount of money. If land easily susceptible of division is sold in bulk, and it appears that a sale in parcels would have been more advantageous to the debtor, and that he has been injured by such sale in bulk, it has been the uniform practice of this court to set aside the sale and permit a redemption by the mortgagor. Taylor v. Elliott, 32 Mo. 175; Goode v. Comfort, 39 Mo. 313; Chesley v. Chesley, 49 Mo. 540; s. c., 54 Mo. 347; Tatum v. Holliday, 59 Mo. 422; Carter v. Abshire, 48 Mo. 300; Sumrall v. Chaffin, 48 Mo. 402; Baker v. Halligan, 75 Mo. 435; Montgomery v. Miller, 131 Mo. 595. (b) The provisions under consideration will not render the sale valid, if in fact the property of the debtor was needlessly sacrificed, and as shown by the evidence, twice as much land was sold as was necessary to pay the debt. Stoffel v. Schroeder, 62 Mo. 149; Cassaday v. Wallace, 102 Mo. 581; Harlan v. Nation, 126 Mo. 103. (c) Contracts of mortgage will be closely scanned by courts of equity and harsh or unconscionable provisions will be relieved against. Pom. Eq. Jur., secs. 162, 382, 378, 434, 1180 and 1193; Story Eq. Jur. (12 Ed.), secs. 239-331 and 1018c; Jones Mtgs. (4 Ed.), secs. 1044 and 1049; Lawson on Contracts, secs. 274 and 275; Dorrill v. Eaton, 35 Mich. 302; Leavans v. Bank, 50 Oh. St. 591; Dennis v. Moses, 18 Wash, 537; Daily v. Maitland, 88 Pa. St. 384; Wilson v. Ott, 137 Pa. St. 253; Johnson v. Williams, 4 Minn. 560; Guar. Trust Co. v. Green Cove Co., 139 U.S. 137. (d) The literal enforcement of this provision of the mortgage, without any reference to the character and quantity of the land conveyed, and without reference to whether it could be advantageously divided, or whether a part of it would pay the debt, would amount to a practical renunciation in advance of the equity of redemption of the mortgagor. That this can not be done is established by all the authorities. Peugh v. Davis, 96 U.S. 332; Pom. Eq. Jur., secs. 162, 378, 433 and 1180. (5) The plaintiff is not entitled to protection as an innocent purchaser of this land. (a) The reply of plaintiff does not plead that he was an innocent purchaser, in good faith, without notice. Holdsworth v. Shannon, 113 Mo. 524; Conn. Mut. Ins. Co. v. Smith, 117 Mo. 293; Garrett v. Wagner, 125 Mo. 464. (b) He holds the land as grantee under a quitclaim deed, and for that reason can not claim to be an innocent purchaser. Stoffel v. Schroeder, 62 Mo. 150. (c) The plaintiff was present at the sale and knew the mode and manner thereof; he knew the situation, value and character of the land, and that it was being recklessly sacrificed at the sale. He does not claim in his testimony that he had no knowledge of the facts. Montgomery v. Miller, 131 Mo. 598.
This is an action in ejectment to recover thirteen hundred and twenty 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...
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