Kellogg v. Carrico

• Decision Date: 31 October 1870
• Citation: 47 Mo. 157
• Parties: NOBLE KELLOGG, Appellant, v. WALTER CARRICO et al., Respondents.
• Court: Missouri Supreme Court

47 Mo. 157

NOBLE KELLOGG, Appellant,

v.WALTER CARRICO et al., Respondents.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

Voorhies & Mason, for appellant.

Taussig & Kellogg, for respondents.

CURRIER, Judge, delivered the opinion of the court.

The plaintiff sues in equity to set aside a sale under a deed of trust, and for liberty to redeem. The proceeding is founded upon an averment of fraud in the sale, and of various irregularities attending it. The deed described two separate parcels of land, and provided that “thirty days' public notice” should be advertised in some St. Louis newspaper, in case the property should be sold under the deed. It appears that the notice, in this case, was published in the St. Louis County Legal Record and Advertiser from March 12, 1861, to the 15th day of the following April; that the publication was had on each secular day during that period; and further, that the two parcels of land were put up in connection and sold together, the sale occurring on the last day of publication, namely, April 15, 1861.

It is objected that the Legal Record and Advertiser was not a “newspaper,” that the notice was not advertised on thirty different days prior to the sale; and further, that the sale of the two lots together was unwarranted.

1. The Legal Record and Advertiser was printed in St. Louis in the form of a newspaper, and was issued to its subscribers daily except Sundays, when the publication was omitted. It was devoted to the dissemination of general legal intelligence, and engaged extensively in legal advertising, including the publication of notices of sales under deeds of trust, and sales on execution and all judicial sales. It was a law and advertising journal, and so, in a limited sense at least, a newspaper; for whether a newspaper or not is a question that can not be determined by a consideration alone of the kind of intelligence it disseminated. It is not the particular kind of intelligence published that constitutes one publication a newspaper rather than another. Newspapers are devoted to the dissemination of intelligence on a great variety of subjects, such as politics, com merce, temperance, religion, and so on; and the law and legal topics and occurrences are not excluded from the range of newspaper enterprise. A paper devoted to the gathering up and dissemination of legal news among its readers is, or at least may be, a newspaper. I regard the Legal Record as a newspaper of that character. The more important inquiry, however, is, was it such a newspaper as the parties to the deed of trust contemplated? In other words, was a publication in it adapted to impart notice of the impending sale to the defendant and the public? Its circulation outside of St. Louis county was very limited, but within that county it was well known, and generally recognized as the proper medium for the publication of all legal notices required by law to be published in St. Louis county, including notices of sales under deeds of trust. While the act of 1861 (Sess. Acts 1861, p. 101) remained in force, the Legal Record was uniformly employed by advertisers in accordance with the terms of that act. During that period it is not shown that any sale under a deed of trust took place in St. Louis without a notice of the sale being first advertised in that paper. A further publication was frequently had in other newspapers, it is true, and with a view, doubtless, to avoid the question here raised. The Legal Record was kept on file in public and private offices, because of the fullness of the information it imparted upon all subjects falling within the compass of its particular department. It circulated particularly among real estate dealers and those giving special attention to real estate sales at public vendue. To that extent it was eminently well adapted to subserve the purposes of the parties to the deed of trust, in requiring the sale by the trustee to be advertised in some newspaper. It was not required by the deed that the notice should be published in the newspaper having the largest circulation, or any specific circulation, or in a newspaper devoted to the publication of intelligence of one particular class or character. In the exercise of integrity and fair intelligence, the trustees were left perfectly free to select any newspaper printed in St. Louis which they might regard as a suitable medium for the required publication. In other words, the selection was left to their discretion. There is no suggestion of unfairness or want of perfect good faith on their part, nor is it claimed that the plaintiff was actually injured by their action in this behalf. The case shows that the plaintiff had actual notice of the sale, and that he attended it in person; that he raised no objection to the sufficiency of the notice, or to the regularity and legality of the sale. He in fact swears that the property was bid off by the purchaser in his (plaintiff's) interest and for his benefit. Under these circumstances, to hold the sale invalid at his suggestion, on account of the character or limited circulation of the newspaper in which the notice of sale was published, would seem unjust and unwarranted. Had the property been bought in by a stranger, the plaintiff would undoubtedly be regarded as having waived the objection he now urges. (Taylor v. Chowning, 3 Leigh, 654.) As the case stands, we are not inclined to hold this sale--and so all sales made under like circumstances and under like publication of notice-- as invalid for the cause here assigned.

2. The publication of notice on each successive secular day, from March 12th to April 15th, inclusive, satisfied the requirements of the deed...