Kingman v. Waugh

• Decision Date: 25 May 1897
• Citation: 40 S.W. 884,139 Mo. 360
• Parties: Kingman v. Waugh et al., Appellants
• Court: Missouri Supreme Court

40 S.W. 884

139 Mo. 360

Kingman v. Waugh et al., Appellants

Supreme Court of Missouri, First Division

May 25, 1897

Appeal from St. Louis City Circuit Court -- Hon. Jacob Klein, Judge.

Affirmed.

Henry H. Denison for appellants. With whom is Chester H. Krum Amicus Curiae.

(1) As appears in the record and the statement of facts, the only point in controversy is that contended for by the appellants to wit: That the sale was not advertised "in some newspaper printed in the English language in the city of St Louis," within the meaning of said deed of trust, and of the statutes of Missouri governing trustees' sales. The only point in controversy is whether the "St. Louis Daily Record" is a "newspaper" in contemplation of the statute and the powers conferred upon the trustee by the deed. Briggs v. Briggs, 135 Mass. 306; Cassidy v. Cook et al., 99 Ill. 388; Meacham v. Steele, 93 Ill. 147; Webber v. Curtiss, 104 Ill. 309; Beecher v. Stephens, 25 Minn. 146.

Stewart, Cunningham & Eliot for respondent.

(1) The advertisement of the notice of sale in the "St Louis Daily Record" answered the requirement of the statute (R. S. 1889, sec. 7,093), and also the requirement of the deed of trust. German Bank v. Stumpf, 73 Mo. 311; Clapton v. Taylor, 49 Mo.App. 117; City of St. Joseph v. Landis, 54 Mo.App. 315; Richardson v. Tobin, 45 Cal. 30; Tribune Publishing Co. v. Duluth, 45 Minn. 27. (2) The "St. Louis Daily Record" is a "daily newspaper printed in the English language," within the meaning of the statute and of the deed of trust. Dart v. Bagley, 110 Mo. 42; 16 Am. and Eng. Ency. of Law, 491; Pentzell v. Squire, 161 Ill. 346; Richardson v. Tobin, 45 Cal. 30; Tribune Pub. Co. v. Duluth, 45 Minn. 27; S. C., 47 N.W. 309; Kellogg v. Carrico, 47 Mo. 157; Dawson v. Dawson, 23 Mo.App. 169; Worcester's Dictionary -- "Newspaper;" Webster's Dictionary -- "Newspaper;" Century Dictionary -- "Newspaper;" Bouvier's Law Dictionary -- "Newspaper;" Abbot's Law Dictionary -- "Newspaper;" Wharton's Law Dictionary -- "Newspaper;" Laws of Missouri 1885, p. 208; Benkendorf v. Vincenz, 52 Mo. 441; 23 Am. and Eng. Ency. of Law, 370; Collins v. Wilhoit, 35 Mo.App. 585; Hull v. King, 38 Minn. 349; Kerr v. Hitt, 75 Ill. 51; Hernandez v. Drake, 81 Ill. 34; Lynch v. Durfee, 101 Mich. 171; S. C., 59 N.W. 409; Norton v. Duluth, 54 Minn. 281; S. C., 56 N.W. 80; Lynn v. Allen, 44 N.E. 646; S. C., 33 L. R. A. 779; Meyer v. Opperman, 76 Tex. 109; Railton v. Lauder, 126 Ill. 219; Maass v. Hess, 140 Ill. 576.

Barclay, P. J. Macfarlane, Robinson and Brace, JJ., concur.

OPINION

Barclay, P. J.

This is an action in ejectment to recover possession of a piece of land in St. Louis. The petition is in the ordinary statutory form. The answer is a general denial. When the case came to trial it was submitted upon a so-called "agreed statement of facts," in lieu of other testimony. It appears from that statement that plaintiff asserts his title through a sale of the land under a deed of trust executed by the principal defendant. The only substantial question in the litigation is whether or not the notice under the deed of trust was published in a "newspaper." The other requirements of the deed of trust are admitted to have been fully met in making the trustee's sale to plaintiff. Counsel for defendants, appellants, states the gist of the dispute in these words:

"As appears in the record and the statement of facts, the only point in controversy is that contended for by the appellants, to wit: that the sale was not advertised 'in some newspaper printed in the English language in the city of St. Louis,' within the meaning of said deed of trust, and of the statutes of Missouri governing trustees' sales."

The agreed statement recites that the notice was duly published in the St. Louis Daily Record. But the defendants contend that that publication is not a newspaper within the meaning of the law and of the deed of trust. The description of the paper, given in the "statement," is as follows: The St. Louis Daily Record "is printed and published in the English language in the city of St. Louis, Missouri, every day except Sunday; that said publication claims on the face of it to be 'a newspaper devoted to the courts, financial, real estate, building and business interests of St. Louis;' that it is delivered each week-day morning, by carrier, in the city of St. Louis, and in outlying districts of the city by mail; that the subscription price is printed plainly upon the paper, and is not nominal, but is adhered to; that it circulates throughout the city of St. Louis, and is not confined to any particular trade, or calling, or business interest. It circulates generally among the lawyers, real estate dealers, bankers, brokers, money-lenders, bond and stock dealers, real estate speculators, and other property holders. It also circulates extensively among material men and builders, and those interested in the construction of buildings and the improvement of real estate. It is taken to a considerable extent by merchants, grocers, packing houses, provision dealers, wine and liquor dealers, brewers, dry goods merchants and commission merchants of the city of St. Louis.

"It contains daily what is claimed to be a complete list of all conveyances of real estate within the city of St. Louis, and all deeds of trust, releases of deeds of trust, chattel mortgages, permits issued for improvements upon real estate, mechanics' liens, judgments and transcripts affecting real estate, which occurred the day previous to the publication; notices of all real estate to be sold by trustees under powers contained in deeds of trust; notices of sales of real estate by administrators, executors, commissioners, or by other judicial process, both in the city of St. Louis and in St. Louis county. It contains a brief minute of the proceedings of the circuit court of the city of St. Louis; brief notices of all suits filed in said court, and the setting of such cases for trial.

"It also contains quotations of all principal stocks and bonds on the market in the city of St. Louis; notices of assignments; bills of sale; notices of business failures; notices of new corporations formed in St. Louis.

"It also contains brief items of news of a general character.

"It contains a number of commercial advertisements, and the advertisements are not confined to any particular trade or business. It contains, from time to time, advertisements of a legal nature, such as notices of sales of real estate at auction, by trustees under deeds of trusts, notices of stockholders' meetings.

"It is further agreed that the copies of said paper bearing dates the 10th, 21st, 23d and 30th days of August, 1894, in which the advertisement of the sale of the property in controversy appeared, are fair samples of the publication known as St. Louis Daily Record, and the same are hereto attached, marked exhibits 'C,' 'D,' 'E' and 'F' to this agreed statement of facts.

"It is further agreed that if the court shall find from the facts hereinbefore agreed that the notice of said sale was published 'in a newspaper printed in the English language in the city of St. Louis,' within the meaning of said deed of trust and said statutes of Missouri, then the plaintiff has title to the property in controversy; and if not, then the defendant has title."

The trial court found for plaintiff. Defendants appealed, after the overruling of their motion for new trial and the due saving of an exception to that ruling. The bill of exceptions also preserves the agreed statement of facts as presented to the circuit court.

1. Both parties on this appeal have argued and submitted the question whether the...