Kline v. VoGel

• Decision Date: 22 November 1881
• Parties: JULIET P. KLINE ET AL., Appellants, v. JOHN C. VOGEL ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 211

JULIET P. KLINE ET AL., Appellants,

v.JOHN C. VOGEL ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 22, 1881.

1. Mere inadequacy of price is not sufficient cause for setting aside a sale under a deed of trust.

2. That a row of houses were not sold separately is not ground for setting aside such a sale, where it does not appear that the trustee was asked to so offer them.

3. In the absence of anything in the pleadings or evidence to show that the plaintiff is willing to pay the defendant the amount properly chargeable against the property, and it does appear that the defendant is willing to convey to the plaintiff upon the payment of such charges, the bill is properly dismissed, on hearing.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

PATTISON & CRANE, for the appellants.

BROADHEAD, SLAYBACK & HAEUSSLER, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This is in the nature of a suit in equity to set aside a sale of property under a deed of trust. The property was sold in August, 1877, and this suit was brought in March, 1880, or nearly three years afterwards. The plaintiffs had purchased the property in question as tenants in common, and, for convenience, had taken the title in the name of the plaintiff Pattison, and he had executed and recorded a declaration of the trusts upon which he held the legal title. At the time it was thus purchased by the plaintiffs, there was an encumbrance upon it by deed of trust to the amount of $5,000. The defendant had purchased the notes secured by this deed of trust, and the plaintiff Pattison paid the interest-notes as they fell due in the defendant's hands; but when the principal note for $5,000 fell due, which was in February, 1877, the plaintiff could not pay it, and Mr. Vogel, at the request of Mr. Pattison, indulged them until some time in the summer, and finally agreed to surrender up the note if Mr. Pattison would execute to him a quitclaim deed. Mr. Pattison executed and sent from New York, where he was on business, a quit-claim deed; but when it was tendered to Mr. Vogel, he refused to accept it, on account, as he says in his testimony, of the conditions accompanying it. What these conditions were he does not state, nor is it at all material, for he was under no legal obligation to accept the deed when it arrived; it was a promise without consideration, and he was at liberty to change his mind at any time before it was executed. He then advertised the property for sale in the regular way, and in accordance with the terms of the deed of trust, in the St. Louis Daily Journal; and Mr. Logan, who was the agent for the renting of the property, informed Mr. Pattison of this fact, and sent a copy of the advertisement to him. Mr Pattison, however, did not return to attend to the matter, nor, so far as the testimony shows, did he appoint Mr. Logan or anyone else to look after it; but, on the contrary, he went to Maine and remained there, either for health or pleasure, until September. His co-plaintiffs were non-residents of the country, though two of them were temporarily in St. Louis at the time. When the property was exposed for sale, ten or a dozen persons were assembled. The property consisted of seven houses in a row, built upon a tract of ground having a front of one hundred feet. Each house contained four rooms, and they were constructed so that each floor was generally rented to a separate tenant. No one requested the trustees at the sale to offer the houses separately, and the entire property was therefore put up for sale in a lump. No one bid on it except the defendant, and it was struck off to him for $500. The evidence is conflicting as to the value of the property at the time, testimony of various witnesses placing it at from $3,000 to $10,500. It had been suffered to get out of repair; the street was not made in front of it; it was rented, when rented, to a poor class of tenants. The ground on which it stood was estimated to be worth $10 a foot. Real property was greatly depressed on account of labor troubles, and it wasvery difficult to make sales at any price.

The foregoing is the substance of the testimony. The plaintiffs, as already stated, waited nearly three years and then brought the present action. They allege in their petition a willingness to pay to the defendant whatever is justly due on the $5,000 note secured by the deed of trust on the property, but they do not allege that they have made any tender of such sum, or of any sum, nor do they offer to pay it into court. On the other hand, the defendant sets...