Hancock v. Whybark
| Decision Date | 31 October 1877 |
| Citation | 66 Mo. 672 |
| Parties | HANCOCK v. WHYBARK et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Wayne Circuit Court.--HON. R. P. OWEN, Judge.
Henry Flanagan and B. Zwart for plaintiffs in error.
1. This is a direct action between the parties to the deed of trust for the possession and determination of title to the very property claimed to be conveyed thereby, before the property had been demanded or had gone out of the defendant's possession. It was competent to prove payment of the debt, and consequent extinguishment of the power to sell. The fact that a large portion of the property was not covered by the deed of trust, or any other fact tending to disprove plaintiff's title, ownership or right to the possession of the property taken, was competent. 1 Hill on Mort., (4 Ed.) p. 593, § 23; p. 147, § 24; Greenway v. James, 34 Mo. 326; Weston v. Clark, 37 Mo. 568; Gray v. Parker, 38 Mo. 160; Cameron v. Irwin, 5 Hill 272, 275; Chitty on Cont., (10 Am. Ed.) 399, 400; 2 Hill on Mort., p. 379.
2. The execution of the trustee's deed and the notice of sale was not proven.
J. W. Emerson and J. P. Dillingham for defendants in error.
The trustee's deed was sufficient, and conclusive evidence of title, and could not be attacked collaterally. The proceeding should have been in equity to set aside the sale. Until that is done, the sale and deed must stand. Haeussler v. Mo. Glass Co., 52 Mo. 453; 2 Starkie Ev., p. 544; 2 Bibb, 311, 321; Pilkington v. Trigg, 28 Mo. 99.
This was an action brought in the circuit court of Wayne county, under the statute in relation to the claim and delivery of personal property, for the recovery of “one circular saw mill, one steam engine, one steam boiler, and the necessary running apparatus thereto belonging.” On the 11th day of April, 1872, the defendants executed a deed of trust, whereby they conveyed the property sued for to one B. F. Carter, as trustee, to secure the payment of certain obligations made by them to the plaintiff. On the 22d day of July, 1872, the trustee, assuming to act under the power conferred upon him by the trust deed, sold said property to the plaintiff at public sale, and executed to him a bill of sale, or rather a formal deed, therefor. The sale took place at the court-house door in Centreville, Reynolds county, the place appointed in the deed, but the property was not present at the sale, and was not actually delivered to the plaintiff. The defendants having refused to surrender the same, plaintiff instituted the present action. At the trial plaintiff offered in evidence the deed of trust, the trustee's deed to him, reciting the trust deed, the default, the notice of sale, sale and purchase by plaintiff, and the affidavit of the trustee, that he had posted ten copies of the notice of sale, in ten public places, as required by the deed of trust, all of which were admitted against the objections of the defendants, that the execution of the deeds was not proven, and that the affidavit of the trustee was incompetent.
The only evidence of a sale and purchase by the plaintiff, was the instrument in form of a deed, made to him by the trustee. There was no proof of its execution, nor was there any evidence of the truth of the recitals it contained; nor were the recitals themselves made prima facie evidence of their truth by the provisions of the deed of trust. This instrument was, therefore, improperly admitted in evidence. Neilson v. The County of Chariton, 60 Mo. 386; Vail v. Jacobs, 62 Mo. 130.
Nor was the affidavit of the trustee competent evidence. He should have been introduced as a witness. Section 7 of the statute in relation to advertisements, is inapplicable to a case like the present.
The defendants offered to prove that the deed of trust under which the plaintiff claimed, was satisfied and...
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