Hoffman v. McCracken
| Decision Date | 19 April 1902 |
| Citation | 67 S.W. 878,168 Mo. 337 |
| Parties | HOFFMAN et al. v. McCRACKEN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.
Affirmed.
Rechow & Pufahl for appellants.
(1) The petition fails to state a cause of action. Knoop v Kelsey, 121 Mo. 646; Jopling v. Walton, 138 Mo 489; Hardwick v. Hamilton, 121 Mo. 467. (2) Gross inadequacy of price is not sufficient to justify the setting aside of a sale. Knoop v. Kelsey, 121 Mo. 648; Walters v. Herman, 99 Mo. 530; Briant v Jackson, 99 Mo. 598; Keith v. Browning, 139 Mo. 196; Hardwick v. Hamilton, 121 Mo. 475; Harlin v. Nation, 126 Mo. 102; Routt v. Milner, 57 Mo.App. 53; Maloney v. Webb, 112 Mo. 584. (3) The demurrer to the evidence should have been sustained. Hardwick v. Hamilton, supra; Knoop v. Kelsey, supra. (4) The notice set out in the petition shows that the sale was properly advertised. R. S. 1899, sec. 4357; Morgan v. Joy, 121 Mo. 684; Gray v. Worst, 129 Mo. 130; Powers v. Kneckhoff, 41 Mo. 429; Ohnsorg v. Turner, 13 Mo.App. 540. (5) The only unfairness charged is that the first mortgage had in fact been paid off, but as it was made to appear as outstanding by the fraudulent acts of the plaintiffs, they are not in a position to take advantage of their own wrong. Equitable relief will be granted only where it is made to appear that the complainant is free from negligence or fraud. Sanderson v. Voelcher, 51 Mo.App. 332; Freeman v. Moffit, 132 Mo. 288. No man will be permitted to take advantage of his own wrong. Broom's Legal Maxims (7 Am. from 5 London Ed.), p. 279; Morrison v. Juden, 145 Mo. 300. (6) Even if it were true that the trustee did not offer the land for sale in the least legal subdivisions, this, under the circumstances (there being a first mortgage for between nine and ten hundred dollars outstanding), makes it manifest that that was the only way that the land could be sold; however, all the testimony shows that he called for bids on any separate forty and received no response. This was sufficient. Hardwick v. Hamilton, supra; Kline v. Vogel, 90 Mo. 244.
J. B. Upton, John W. Ross and F. S. Sea for respondents.
(1) The petition is sufficient. If it were subject to demurrer defendants, by answering, waived and abandoned whatever advantage they may have acquired thereby. Burnham & Co. v. Tillery & Co., 85 Mo.App. 459; State v. Sappington, 68 Mo. 454; Spillane v. Railroad, 111 Mo. 562; Higgins v. Railroad, 36 Mo. 431. (2) The testimony of plaintiffs as to their understanding of the provision in the deed of trust was properly admitted to show that they believed that when they paid the $ 900 mortgage in full it cancelled all of the other notes, and that they were not negligent in not recording their release or keeping up a correspondence with the firm of Adams, McKinney, Leavitt & Company through whom they had borrowed this money. (3) The sale of 240 acres of land, worth from $ 4,500 to $ 5,000, for $ 40 to pay a pretended claim of $ 4.50, is of itself so grossly inadequate as to call for equitable relief, and when taken together with the indifference shown by the trustee to plaintiff's interest, the effect of the statement contained in the notice of sale and the announcement at the sale of its being subject to a prior mortgage, which had been settled, and the action of the beneficiaries in the deed of trust both before and after the sale is surely sufficient to call for affirmative relief. Railroad v. Brown, 43 Mo. 294; Stoffel v. Schroder, 62 Mo. 147; Vail v. Jacobs, 62 Mo. 130; 2 Pomeroy's Equity (2 Ed.), sec. 927; Ames v. Gillesmore, 59 Mo. 537; Phillips v. Stewart, 59 Mo. 491. (4) Plaintiffs, believing they had settled all the notes when they paid off the $ 900 deed of trust in March, 1898, were under no moral or legal obligation to file their deed of release, and defendants can take no advantage of that fact, or derive any benefit therefrom. Bank v. Buck, 123 Mo. 153.
This is a suit in equity to set aside a trustee's sale under deed of trust of the following described land situate in Polk county, Missouri, to-wit, the south half of the north half and the northwest quarter of the northeast quarter of section twenty, and the south half of lot one of the southeast quarter of section thirty-one, township thirty-five of range twenty-two. The trial resulted in a judgment and decree in favor of plaintiff setting aside the sale, from which defendants, after unavailing motions for new trial and in arrest, appeal.
The petition alleges that on the seventh day of July, 1896, the plaintiff, Henry Hoffman, was the owner of said land. That defendants Adams, McKinney & Leavitt were loan agents for the Missouri Trust Company, and as such made to the plaintiff a loan on said land for nine hundred dollars at seven per cent interest, payable semiannually on the first of January and July; that plaintiffs executed their note for the nine hundred dollars with six per cent interest payable as above stated, and that he and his wife executed a deed of trust on said land to secure the payment of said note and interest. That on the same day they executed ten notes for four and fifty-hundredths dollars each, payable to the defendant Adams; that this represented the other one per cent interest, and executed a deed of trust on the above land to T. G. Rechow as trustee to secure the payment of these notes, which recited that it was subject to the deed of trust for nine hundred dollars. That it was agreed and understood that plaintiffs should have the privilege of paying off said loan at any time and in case of doing so all interest coupons maturing after such payment should be void. That in order to express such agreement, the following clause was inserted: "It is understood and agreed, however, that in case Henry Hoffman shall fully pay off the aforesaid nine hundred dollars to the Missouri Trust Company on or after July 1, 1898, all of the said notes falling due after said payment shall be cancelled and returned to Henry Hoffman." That they understood from that clause that if they at any time before maturity paid the principal bond all the small notes would be considered paid and cancelled. That plaintiff promptly paid the notes including the one that fell due January 1, 1898, and on the thirty-first day of March paid off the bond and interest, amounting to nine hundred and eighteen dollars. That the trust company returned his bond duly cancelled and also a deed of release releasing the land from the lien of said deed of trust. That plaintiff thought that the payment of the nine-hundred-dollar bond fully discharged the unpaid small notes. That the land is worth five thousand dollars; that it was sold in bulk on December 15, 1898, and was bought by H. C. McCracken for forty dollars; that it was the belief that the nine-hundred-dollar mortgage was outstanding. That the trustee made the deed (it is now sought to set aside) to H. C. McCracken. That there were but few persons at the sale and only two bidders. That the notice of sale failed to describe the notes the mortgage was given to secure, and fails to show why said sale was being made. It fails to show any authority in the trustee to make the sale. It says the land will be sold subject to a prior mortgage without reciting the amount of such mortgage or giving information of what mortgage was intended or any means by which such information could be obtained. That the inadequacy of the consideration is gross and the land was sold in bulk. That by reason of the failure of plaintiffs to file their deeds of release of the nine-hundred-dollar mortgage it was supposed the same was still outstanding.
There is no fraud or misconduct charged unless it is contained in the allegation that there were only two bidders and the trustee for that reason ought to have adjourned the sale.
Defendants interposed a demurrer to the petition which was overruled. They then filed answer to the petition in which it is denied that the land was not offered for sale in the smallest legal subdivision. It admits that McCracken, the purchaser believed the nine-hundred-dollar deed of trust was outstanding, and alleges that the deed of release had not been filed for record at the time of sale, and if there was any suppression of bidding at the sale on that account, it was caused...
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