German Bank v. Stumpf

• Decision Date: 31 October 1880
• Citation: 73 Mo. 311
• Parties: THE GERMAN BANK v. STUMPF, Appellant.
• Court: Missouri Supreme Court

73 Mo. 311

THE GERMAN BANK

v.STUMPF, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Kehr & Tittman for appellant.

The principle is undisputed and fundamental, that directions in powers of sale must be strictly, literally and precisely pursued, and admit of no equivalent or substitution, however unessential they might otherwise have been. 2 Am. Law Reg., (N. S.) pp. 713, 714. And if the power has not been executed according to essential conditions, the sale and deed will be held void both at law and in equity. Eitelgeorge v. Mut. H. B. Asso., 69 Mo. 55. Of all the requisites constituting a valid exercise of the power of sale and of the conditions precedent to give validity to the deed, respondent proved only that the trustee made the sale; that he made it on the 23rd day of October, 1876; that the respondent became the purchaser, and that a deed was made to it as such purchaser. The deed was not evidence, nor was it otherwise proved: 1st. That a sale was desired by the holder of said note; 2nd. That the trustee gave thirty days' public notice by advertisement in some daily newspaper; 3rd. That he gave thirty days' public notice by advertisement in some daily newspaper printed and published in the city of St. Louis; 4th. That he sold at the east front door of the court house, in the city of St. Louis; and 5th. That he sold between the hours mentioned in the notice of sale. These were all essential prerequi sites to the validity of the deed, and without proof of them the deed was not admissible in evidence. Haskell v. Bartlett, 34 Cal. 283; Stine v. Wilkson, 10 Mo. 96; Bunce v. Reed, 16 Barb. 352; Dakins v. Wagner, 3 Dowl. 535; Delogney v Smith, 3 La. 418; Scammon v. Chicago, 40 Ill. 146; Martin v. Paxson, 66 Mo. 260; Dutton v. Cotton, 10 Iowa 408. The property, having been conveyed in separate lots, should have been sold separately by the trustee, and not in bulk. Chesley v. Chesley, 49 Mo. 540; Carter v. Abshire, 48 Mo. 300; Tatum v. Holliday, 59 Mo. 422.

B. E. Rombauer for respondent.

1. The trustee was not bound to sell the property in parcels, not being requested to do so by any one, and it not being shown, or even claimed, that the property would have brought more if sold in parcels. Benkendorf v. Vincenz, 52 Mo. 443.

2. The notice of sale was sufficient. The deed required thirty days' public notice, and at least thirty-one days' public notice was given. Time of notice is determined from day of first insertion to day of sale. Kellogg v. Carrico, 47 Mo. 157; Leffler v. Armstrong, 4 Iowa 482. And the coincidence of days of the week with the days of the month, is a fact of which courts take judicial notice. 1 Greenleaf Ev., § 5.

3. No exceptions were saved to the admission of testimony. Defendant's objections to the admission of testimony did not specify any objections, and this court will not review them. McCartney v. Shepard, 21 Mo. 573; Clark v. Conway, 23 Mo. 438; Grimm v. Gamache, 25 Mo. 41; Rosenheim v. America Ins. Co., 33 Mo. 230; State v. King, 44 Mo. 238.

HOUGH, J.

This was an action of ejectment. The plaintiff claimed title as purchaser at a sale made under a deed of trust executed by the defendant. There was no provision in the deed of trust making the recitals in the trustee's deed evidence of the facts stated, except as to notice. The deed of the trustee to the plaintiff was read in evidence, and notwithstanding the recitals as to notice therein contained, the plaintiff also introduced the notice of sale and an affidavit of the publishers of the “St. Louis Daily Journal,” a newspaper printed in the city of St. Louis, that the notice was published in said paper twenty-eight times, the first insertion being on the 22nd day of September, 1876, and the last insertion on the 22nd day of October, 1876, the day before the sale. No publication of the notice was made on Monday, September 25th, Monday, October 9th, and Monday, October 16th. The default of the defendant in the payment of the sum secured by the trust deed was admitted by him at the trial.

1. DEED OF TRUST SALE: evidence.

There was testimony that the property was sold by the trustee at the court house “under the deed of trust,” and in the absence of even a suggestion to the contrary, the jury were warranted in inferring from this testimony that the trustee made the sale in conformity with the requirements of the deed. The defendant introduced no testimony. There was a verdict and judgment for the plaintiff.

2. ______: selling in mass.

The principal objections relied upon are that the notice was insufficient, and that the property was sold in mass, when it should have been subdivided and sold in lots. The mere fact that property which is susceptible of division, has been sold in mass, will not render a trustee's sale void. It is only where substantial injury has been inflicted by a failure to subdivide and sell in parcels, that a court of equity will interfere and set the sale aside. Kelly v. Hurt, 61 Mo. 469. If no steps be taken to avoid such a...