Grove v. Robards

• Decision Date: 31 October 1865
• Citation: 36 Mo. 523
• Parties: JACOB E. GROVE, Plaintiff in Error, v. HEIRS OF ROBARDS AND JAS. THOMPSON, Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 523

JACOB E. GROVE, Plaintiff in Error,

v.HEIRS OF ROBARDS AND JAS. THOMPSON, Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Hannibal Court of Common Pleas.

Sharp & Broadhead, for plaintiff in error.

I. The power of the trustee over the legal estate or property vested in him exists only for the benefit of the cestui qui trust--2 Stor. Eq., § 977; 34 Mo. 518, Ewing v. Shafton--where it is held that the person receiving satisfaction is the proper person to acknowledge satisfaction on the record.

II. The power vested in the trustee by the deed must be strictly pursued; otherwise his acts are void--Balridge, Adm'r v. Walton, 1 Mo. 520; Stine v. Wilkson et als., 10 Mo. 75; 14 Mo. 341; Butler v. Dunc., 1 P. Will. 454, in which last case the Lord Chancellor says: “A declaration of trust is like prescribing a law to the trustee which is to be observed by him, and contains a prohibition to act to the contrary.”

Carr, for defendants in error.

When the trustee gave the deed of release to A. S. Robards, that divested him of all title, legal or equitable, to the lot in question. His power over it then became functus officio, and he had no authority to advertise and sell it afterwards. The sale under the deed of trust was void ab initio. The sale was not a mere irregularity. There was a total want of authority. Two remedies were open for the plaintiff in error to have pursued, viz: either.

1. To sue the trustee for damages for improperly releasing the deed of trust; or,

2. To have instituted a suit to set aside and vacate said deed of release, upon an allegation of fraud or collusion, and then get the court to restore the lien and order the property to be sold to satisfy the debt. The plaintiff in error has pursued neither of these remedies. When he alleged in his petition that the trustee had released the deed of trust and afterwards sold under it, he stated himself out of court.

WAGNER, Judge, delivered the opinion of the court.

The petition in this case is in the nature of a bill in equity. It states that on the 21st day of July, 1860, A. S. Robards, now deceased, and Amanda his wife, made, executed and delivered a deed of trust to Jas. Thompson, (who is made a co-defendant,) to secure the payment of a note due the plaintiff for the sum of $1,120, which was payable six months after the date of said deed, by which he conveyed to defendant Thompson lot No. 7, in block No. 47, in the city of Hannibal, together with all the improvements thereon; that in default of the payment of said note, when it became due and payable, the trustee Thompson was to advertise and sell the said lot for cash, after giving the notice specified in the said deed in some newspaper, and with the money arising from the sale he was to satisfy the expense of the trust and pay off and discharge the indebtedness that might be due on the note. The deed of trust was duly filed for record in the office of the recorder of Marion county, on the 8th day of September, 1860.

Robards, before his death, made a small payment on the note, and interest up to the 21st of March, 1861, but failed to pay the balance due. On the 30th day of April, 1861, Thompson, the trustee, at the request of and through the representations of Robards, executed a deed of release to the lot to the latter, leaving the debt still unpaid. Robards died insolvent. At the request of the plaintiff, Thompson, in accordance...