Isaac H. Taylor's Heirs v. Elliott

• Decision Date: 31 March 1862
• Citation: 32 Mo. 172
• Parties: ISAAC H. TAYLOR'S HEIRS, Appellants, v. RICHARD S. ELLIOTT et al., Respondents.
• Court: Missouri Supreme Court

32 Mo. 172

ISAAC H. TAYLOR'S HEIRS, Appellants,

v.RICHARD S. ELLIOTT et al., Respondents.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

The facts are stated in the opinion.

M. L. Gray, with Krum, for appellants.

I. Both sales by the trustee were void. 1. The first sale was void because the different tracts were put up and sold in

one parcel, when they should have been sold separately. Had it been a sheriff's sale it would have been set aside. (7 Mo. 346; Conway v. Nolte, 11 Mo. 74.) 2. The second sale was clearly void.

a. The purchaser at the first sale, Brown, was not allowed to complete his bid and pay the money.

b. The trustee had no right to call for the money until he was ready to deliver the purchaser, Brown, a good and sufficient deed, properly executed and acknowledged, and until Brown had a reasonable time to examine the deed and judge of its sufficiency. Brown's saying he had not the money was no refusal. (Conway v. Nolte, 11 Mo. 74.)

II. The agreement between Newbury and Brown after the sale to Hickman does not take away the plaintiff's right to redeem.

This suit was brought before the agreement was made, and if Taylor were a party to the agreement he has not released his claim. Newbury bought with notice by lis pendens. There was no stipulation about the suit.

S. N. Holliday, for respondent.

I. The judgment was for the right party and should be affirmed.

Brown bid in the property for Taylor & Mason for the purpose of defeating a sale that day, so that a further notice might be required.

II. The plaintiff induced Newbury to buy the property of Hickman, and cannot attack that sale under which Newbury bought.

BATES, Judge, delivered the opinion of the court.

This suit was brought by Taylor against Elliott & Hickman to set aside a sale made by Elliott, as trustee to Hickman. Louis S. Robbins made a deed of trust to Elliott to secure the payment of several promissory notes, payable at different times. The land conveyed was four different parcels of land in the town of Lowell, situate in four different blocks, and each parcel of land was composed of eight lots. When the last note became due Hickman was the holder of it, and Elliott, the trustee, at his request sold the property as directed in the deed of trust. Taylor had before then purchased the property from Robbins, subject to the deed of trust. At the trustee's sale the property was bid for by G. W. Brown, and struck off to him for the sum of three thousand two hundred and fifteen dollars, and about one hour afterward the trustee offered to convey the property to brown, exhibiting to him a deed signed but not acknowledged, and demanded the sum of money bid for the property. Brown failed to pay the money because he did not have it. He bought the property for Taylor & Mason, and expected Mr. Mason to furnish the money, and he had not done so. He understood Mr. Mason to be concerned in the ownership of the property, but what was his precise interest in the property does not appear in the case. Brown having failed to pay the money, the trustee returned to the place of sale and again put up the property for sale, and it was then sold to Hickman for one thousand dollars, and a deed made to Hickman by the trustee. At each sale the whole property was put up at one time, without being divided. The property was worth about ten thousand dollars, but at the first sale one Dr. Hall made proclamation that he had a claim against the property, which tended to injure the sale.

Afterward, and after this suit was brought, Brown, as the agent of Taylor & Mason, made an...