Graham v. King
| Citation | 50 Mo. 22 |
| Parties | JAMES GRAHAM AND WIFE, Respondents, v. ANDREW KING et al., Appellants. |
| Decision Date | 31 March 1872 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Charles Circuit Court.
A. E. Lewis and Wm. A. Alexander, for appellants.
Orrick & Emmons, for respondents.
The respondents, Graham and wife, executed a deed of trust on a piece of land lying in St. Charles county to secure the payment of a debt, and one of the appellants (King) was made the trustee therein. The deed contained the usual and ordinary provisions, and after default was made in the payment of the debt, authorized the “said King as trustee to proceed to sell the property” after having given the requisite notice in some newspaper published in St. Charles county. Payment not being made when the note became due, King advertised the property for sale in the St. Charles Democrat, a German newspaper, but the notice was inserted in the English language. There were two English papers published in St. Charles county, one, the Cosmos, having an equal circulation with the Democrat. At the sale, King, the trustee, was not present, but left the matter in the hands of his son, a minor. It is alleged that the property sold for greatly below its value, and an injunction was asked to restrain the trustee from making a deed to the purchaser at the sale. After hearing the proof the court below decreed a perpetual injunction.
1. The notice published in the German paper was obviously bad. When notices are to be published in a paper, an English paper is always intended unless it is expressed to be otherwise. The insertion of an English advertisement in a German paper would generally give less publicity to it than if it were published in the German language, as those among whom the paper circulates would not be able to read it in the English tongue. And if it were published in German, then it would be a sealed book to the most of those who read and speak English. The trustee acted without authority in this matter, and the notice was palpably insufficient.
2. The office and duties of a trustee are matters of personal confidence, and he must exercise a just and fair discretion in doing whatever is right for the best interest of the debtor. He must in person supervise and watch over the sale, and adjourn it if necessary, to prevent a sacrifice of the property, and no one can do it in his stead unless empowered thereto in the instrument con ferring the trust. A trustee cannot...
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Turner v. Johnson
...the sale; the purchaser thereby became a trustee and held it for the debtor subject to redemption. Sherwood v. Saxton, 63 Mo. 78; Graham v. King, 50 Mo. 22; Tatum Hollispie, 59 Mo. 422; Stofel v. Shraeder, 62 Mo. 147. (11) Johnson certainly from the evidence and his letter of April 21, 1879......
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... ... such discretion. Hines was not present and therefore the sale ... is void. Bales v. Perry, 51 Mo. 449; Graham v ... King, 50 Mo. 22; Vail v. Jacobs, 62 Mo. 130; ... Landrum v. Bank, 63 Mo. 48. (4) A sale made when no ... default exists is utterly ... ...
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