Hereford v. Nat'l Bank of Missouri

• Citation: 53 Mo. 330
• Parties: WILLIAM HEREFORD, et al., Respondents, v. THE NATIONAL BANK OF STATE OF MISSOURI, et al., Appellants.
• Decision Date: 31 August 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 330

WILLIAM HEREFORD, et al., Respondents,

v.THE NATIONAL BANK OF STATE OF MISSOURI, et al., Appellants.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Linn Common Pleas.

McFerran & Warder, C. H. Mansur, James Carr & Geo. W. Easley for Appellants.

L. T. Collier & A. S. Harris, for Respondents.

ADAMS, Judge, delivered the opinion of the court.

This suit was originally brought in the Livingston County Court of Common Pleas, and taken by change of venue, by consent of parties, to the Linn County Court of Common Pleas.

The petition alleges in substance, that John L. Johnson, and Jasper N. Bell, with their wives, by deed of trust, dated 6th December, 1861, and duly recorded in Livingston County, conveyed to Adamantine Johnson a large amount of real estate in said county in trust, to indemnify certain sureties and indorsers of said Johnson and Bell upon sundry notes and bills of exchange, made due and payable to the Bank of the State of Missouri, and other banks therein named, and amounting to about twenty-one thousand dollars; that at the May Term, 1864, of the Circuit Court of Livingston County, an order was made upon the ex parte application of W. C. Samuel, administrator of the estate of Wm. Y. Slack, deceased, whereby Charles H. Mansur was appointed trustee to execute said deed of trust, in place of Adamantine Johnson, the original trustee, who, as recited in said order, refused to act as such trustee; that said order was made without any notice to the said A. Johnson, the original trustee, and without any notice whatever to the parties named as beneficiaries therein; that said pretended order was, and is, wholly without authority of law, and null and void. The petition also alleges, that Mansur did, in pursuance of the order appointing him trustee, proceed to sell the said real estate, when the Bank of the State of Missouri purchased the whole of the same except eighty acres, and paid therefor the aggregate sum of twenty-eight hundred dollars; that said Bank did, shortly after said sale, sell to the defendant William Perry a part of said real estate, described in the petition as the Porter farm containing 410 acres, for the sum of $3,000; that Bradley at Mansur's sale bought the undivided half of a quarter section for $2,700, and sold the same to Swinburn, and Swinburn to the defendant Josiah Hunt for twelve hundred dollars; that the plaintiff Thomas R. Bryan paid the Bank of the State of Missouri, as surety for said Johnson and Bell, the sum of $1,200.00, and Elisha Hereford in his lifetime, as surety for Johnson and Bell, paid the sum of $3,000. The petition prays judgment, that the order appointing Mansur trustee be annulled and declared void; and that the sales made by Mansur, as trustee, be declared null and void; and that the purchasers be forever barred from setting up any claim to the real estate bought by them, and that the deed of trust be foreclosed and the proceeds of sale be applied to plaintiffs, to reimburse them for the amounts they paid as sureties, and that the balance be applied to the beneficiaries in the deed of trust,...