Hassler v. Mercantile Bank of Louisiana
| Decision Date | 30 March 1916 |
| Parties | AUGUSTA E. HASSLER, Appellant, v. MERCANTILE BANK OF LOUISIANA |
| Court | Missouri Supreme Court |
Appeal from Louisiana Court of Common Pleas. -- Hon. B. H. Dyer Judge.
Affirmed.
John W Matson for appellant.
(1) The deed of trust, and the note that it secured was given by M J. Hassler and S. C. Hassler, and under the laws the interest of either of them could have been sold, or, either could have been sued without joining the other one. The failure of the trustee in his notice of sale and his trustee's deed to mention the name of S. C. Hassler shows failure to foreclose and convey that interest. Secs. 2842, 2843, R. S. 1909; Chamberlain v. Trammell, 131 S.W. 227; Fisher v. Simon, 95 Tex. 234; 28 Am. & Eng. Ency. Law (2 Ed.), p. 789; Youker v. Treadwell, 4 N.Y.S. 674; Reside v. Peter, 33 Md. 120; 9 Ency. Pl. & Prac., p. 166; Thomas v. Loan Co., 79 N.Y. 54; Morgan v. Joy, 121 Mo. 677; Freeman v. Moffitt, 119 Mo. 280. (2) A sale upon foreclosure by advertisement has been held a nullity as to the owner of the premises not notified. St. John v. Bumpsted, 17 Barb. (N. Y.) 100; Watson v. Spence, 20 Wend. (N. Y.) 260; Van Slyke v. Shelden, 9 Barb. (N. Y.) 278. In the equity court the title of the purchaser will not be recognized as valid unless the terms of the power and statutes have been strictly followed. 28 Am. & Eng. Ency. Law, p. 786, and notes.
David A. Ball and Robert A. May for respondent.
(1) Is not the plaintiff estopped from setting up any interest, title or claim to this property? She joined in the deed of trust to Tinsley, trustee for the bank. She knew that S. C. Hassler had signed that deed of trust. She knew that S. C. and M. J. Hassler and herself had conveyed all their equity in this property to the Diamond Flour Manufacturing Company; and she knew that the name of S. C. Hassler had been omitted from the notice of sale of this property under said deed of trust, and she attended the sale by and through her husband and agent, and stood by and said not a word. Can she now be heard to question the sale under said deed of trust? Tyler v. Hall, 106 Mo. 313; Brown v. Appleman, 83 Mo.App. 70; Pentz v. Knester, 41 Mo. 447; Barnett v. Smart, 158 Mo. 167. (2) S. C. Hassler not only executed the deed of trust, but afterwards conveyed all his equity in said property to the Diamond Flour Manufacturing Co. So that he had parted with all of his interest and nothing remained for him to convey. So his deed to plaintiff passed no title or interest in the property to plaintiff. (3) The principal object in publishing notice of sale, is not so much to notify the grantor or mortgagor, as it is to inform the public generally, so that bidders may be present at the sale and a fair price obtained. 28 Am. & Eng. Ency. Law, 790; De Jarnette v. De Giverville, 56 Mo. 440. Accordingly, the notice should contain such facts as are reasonably sufficient to apprise the public of the nature of the property to be sold, and of the time, place and terms of sale. 28 Am. & Eng. Ency. Law, 791; Powers v. Vienckhoff, 41 Mo. 425; Stephenson v. January, 49 Mo. 465. (4) The notice of sale should, ordinarily, contain the name of the grantor but the omission may perhaps be cured by reference to the book and page where the instrument is recorded. 28 Am. & Eng. Ency. 792; Baker v. Cunningham, 162 Mo. 134; Morgan v. Joy, 121 Mo. 677. (5) Even if the trustee's notice of sale were defective, it would be of no avail to plaintiff, unless by petition she had offered to redeem by paying the amount due on the note secured by the deed of trust. Schoenwerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemers, 120 Mo. 73; Springfield v. Donovan, 120 Mo. 423. (6) The grantor, S. C. Hassler, in the deed of trust, was not injured by the sale, because he had parted with all interest he had left to the Diamond Flour Manufacturing Co. Appellant knew this and she knew that all the stock, books, etc., had been turned over to the bank, so she is not hurt nor was she in the least deceived or defrauded by the sale. Ohnsorg v. Turner, 13 Mo.App. 541. The trustee in a deed of trust given upon land to secure a debt takes the title. McNutt v. Life Ins. Co., 181 Mo. 94. A purchaser at a void foreclosure sale will, nevertheless, hold under color of title and may, in suit in ejectment brought against him, set up the forfeited mortgage to protect his possession against all except the mortgagee and those claiming under him on a regular foreclosure sale. Jackson v. Magruder, 51 Mo. 55; Russell v. Whitely, 59 Mo. 196; Johnson v. Houston, 47 Mo. 227; Wheeler v. Drake, 129 Mo.App. 547. (7) It follows that the deed by the acting trustee, although the sale was not advertised according to law, passed the title to plaintiff. Springfield v. Donovan, 120 Mo. 423; Kennedy v. Siemers, 120 Mo. 73; Fowler v. Carr, 63 Mo.App. 486; Biffle v. Pullman, 125 Mo. 108.
This is an appeal from a judgment for defendant in an action in ejectment, instituted in the Louisiana Court of Common Pleas. In the view we take of the case it is unnecessary to state all the facts in detail, since plaintiff's case depends upon the question whether a sale under a trust deed was valid or invalid.
Plaintiff's husband, M. J. Hassler, and his brother, S. C. Hassler formerly owned the land in suit and executed a deed of trust thereon to secure a $ 5,000 note they gave to defendant. In this trust deed plaintiff joined with her husband. Subsequently the equity in the property was conveyed to a corporation whose capital stock was almost all owned by plaintiff. A few shares were in her husband's name and he was president of the concern and plaintiff was its secretary. Default in the payment of the $ 5000 note was followed by the advertisement and sale of the property in suit under the trust deed, and at this sale one McCune bought and later conveyed the property to defendant. Plaintiff's husband and agent, M. J. Hassler, president of the corporation owning the equity, attended the sale. S. C. Hassler, one of the signatories of the trust deed but who had conveyed his interest in the equity to the corporation mentioned, is not shown to have been present at the sale. The amount bid by McCune was the full and fair value of the property sold, and this sum was credited on the note secured, leaving an unpaid balance of several hundred dollars. By a subsequent transfer of other property and all the stock of the corporation mentioned, its books and papers, and certain personal property, this unpaid balance was extinguished and the note fully paid. Subsequently certain sales of the property in suit were made under judgments against the corporation obtained in actions begun about the time of the transfer of the corporate stock to defendant, service being had upon M. J. Hassler as president of the corporation. One of these judgments was upon a claim by plaintiff for an alleged dividend declared some years previously. M. J. Hassler...
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