Lazarus v. Caesar

• Decision Date: 12 June 1900
• Citation: 157 Mo. 199,57 S.W. 751
• Parties: LAZARUS v. CAESAR et al.
• Court: Missouri Supreme Court

57 S.W. 751

157 Mo. 199

LAZARUS v. CAESAR et al.

Supreme Court of Missouri, Division No. 2.

June 12, 1900.

MORTGAGES — TRUSTEE'S SALE — SALE IN PARCELS — SALE OF WHOLE — VALIDITY — PURCHASER FROM MORTGAGOR — FIRST MORTGAGE DEBT — PAYMENT.

1. At a trustee's sale under a deed of trust covering a platted addition, the trustee asked for bids on the separate lots and on the lots en masse, and then struck off the property to a bidder for the lots en masse, whose bid was more than the aggregate of the separate bids. Held that, the trustee having first announced the manner in which he would receive such bids, a bidder for a part of such lots could not compel an acceptance of his bid, as the trustee had a right to sell the property to the best advantage.

2. The purchaser of a platted addition at judicial sale under a second deed of trust had no standing in court to complain that, if the lots had been separately sold at a trustee's sale under the first deed of trust, instead of being stricken off to a bidder en masse, the whole of the first mortgage indebtedness might have been paid, and as a result of which the sale should be set aside, as his interest was in no way affected thereby.

3. A plaintiff who had purchased land at a judicial sale under a second mortgage could not complain that at a trustee's sale under the first mortgage he was prepared to bid $37,600, and that the successful bidder, though prepared to bid $45,000, by colluding with the trustee bid in the property at $21,500, as the injury shown was one that affected the rights of the mortgagor alone, and in no way injured the plaintiff, and he was not entitled to have the sale set aside.

Appeal from circuit court, Jackson county.

Suit by Sam Lazarus against W. J. Caesar and another to set aside a trustee's sale of real estate. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Harwood & Meredith, for appellant. Scarritt, Griffith & Jones, for respondent.

GANTT, P. J.

This is an appeal from the circuit court of Jackson county. The action was commenced on May 15, 1896. The petition contains two counts. In the first count plaintiff prays the court to set aside a certain trustee's sale made by defendant Vaughan as trustee to defendant Caesar, and to order the trustee to make a deed to plaintiff for a certain part of the real estate covered by the trustee's deed; and in the second count he prays to have the trustee's deed to Caesar set aside, and a resale of the property ordered. The petition in substance alleges: That plaintiff, on February 21, 1896, was the owner of lot A, and lots 1 to 7, both inclusive, and lots 10 to 29, both inclusive, of Talbott Place, an addition to Kansas City, Jackson county, Mo., by virtue of a purchase at a trustee's sale under a second mortgage on said property to the Phillips Investment Company, June 26, 1893, and afterwards conveyed by said company to plaintiff by quitclaim deed on April 29, 1896. That at the time he acquired said title there was then a prior deed of trust thereon of date July 1, 1889, given by Leander J. Talbott and wife to Samuel Jarvis, as trustee, to secure a note for $38,000 given by said Talbott to the Jarvis-Conklin Mortgage Trust Company. That said note had been assigned to and was owned by W. J. Caesar. That on January 17, 1896, Samuel M. Jarvis appointed in writing E. G. Vaughan as trustee to act in his place and stead. That on account of the default in said note said E. G. Vaughan advertised the property, including that owned by plaintiff, for sale on February 21, 1896. That at said sale said trustee inquired how those present desired the property sold, — whether in parcels or altogether in one parcel. That thereupon plaintiff requested it be sold in parcels, each lot separately. That thereupon said trustee announced that he would offer the lots separately, and receive any bids made on separate lots, but would not knock down and sell said lots separately, but would, after receiving the bids on the several lots separately, offer all of said real estate as a whole, and that if he received a higher offer for said real estate as a whole than the aggregate of the several bids on the lots separately, he would accept the bid on the real estate as a whole. That the plaintiff, the Phillips Investment Company, and Charlotte G. Harwood thereupon protested against such a method of sale, and said that they would insist on their bids on the lots separately being accepted, and the property knocked down to the highest bidder. Said Vaughan then proceeded with the sale, offering the lots separately. On each of the said lots plaintiff and said Charlotte G. Harwood made bona fide bids. They were the only bidders, neither said Blakeley nor said Moore nor any one else bidding. That for the following lots in Talbott Place offered for sale by said trustee plaintiff was the highest, last, and best bidder at the following prices: Lot A at $10,000; lot I at $500; lots 6, 7, 10 to 25, inclusive, at $300 each; lots 26, 27, 28, and 29, at $400 each. That for the following lots in said Talbott Place said Charlotte G. Harwood was the highest, best, and last bidder at the following prices: Lots 2, 3, and 5 at $300 each and lot 4 at $250. That at the end of the bidding on each of the lots on which plaintiff was the highest, best, and last bidder, and before another lot was offered for sale, plaintiff demanded that the trustee knock down the lot to him, and announce plaintiff as the purchaser thereof, and offered to make any payment thereon required by the trustee; and a like demand and offer was made by Charlotte G. Harwood as to lots on which she was the highest, best, and last bidder; but said trustee refused to knock the lots down as sold, but announced that he would hold such bids in reserve until he had offered the real estate as a whole. That, after the lots had been offered separately, and had been purchased as aforesaid by plaintiff and Charlotte G. Harwood, plaintiff and said Charlotte G. Harwood tendered to said trustee on account of these said bids the sum of $1,000, and offered to pay said trustee their bids in full, but said trustee announced that it was useless to make any tender, as he would not accept any money on the bids, but proposed to offer the real estate as a whole. Plaintiff and the Phillips Investment Company and said Charlotte G. Harwood thereupon protested against the action of said trustee, and against said lots being again offered for sale, but said trustee, over such protests and objections, proceeded to offer the real estate as a whole. That on the real estate as a whole the said Caesar was the only bona fide bidder, and the same, over the objection of plaintiff and said Harwood, was knocked down to him by said trustee at the sum of $21,500, and said trustee, in pursuance of said pretended sale to said Caesar, did, on February 24, 1896, execute and deliver a trustee's deed conveying to said Caesar all said real estate, which deed was, on February 25, 1896, filed for record in the office of the recorder of deeds for Jackson county, Mo., at Kansas City, and is recorded in Book B 611, at page 584. Plaintiff alleges that said real estate is located in the best residence portion of Kansas City, and each of said lots is large enough for building purposes, and said lots, prior to the giving of said deed of trust to Jarvis, trustee, were platted for the purpose of separate sale, and the streets running through said real estate were dedicated to the public use, and have ever since been used by the public; that the natural division of said real estate is in lots as divided and platted. The plaintiff further alleges that the defendant W. J. Caesar is now in possession of said real estate under the trustee's deed described above; that the plaintiff has been ever ready, willing, and able to pay in cash the amount bid by him at said sale for said real estate, namely, the sum of $17,500, which amount the plaintiff now offers to pay. Plaintiff alleges that by reason of the premises he was entitled to have the said lots on which he was the highest bidder knocked down and sold to him by said trustee, and to receive a deed from said trustee therefor; that by reason of the premises the said pretended sale to Caesar and the said trustee's deed made in pursuance thereof are void, and of no effect, and should be by this court set aside; that the plaintiff has no adequate remedy at law, and that he will receive irreparable injury unless the remedy herein prayed for is granted. Wherefore the plaintiff prays that said pretended sale of said real estate to said Caesar and the said trustee's deed by E. G. Vaughan, as trustee to W. J. Caesar, above referred to, be set aside, and declared null and void, and that the trustee, E. G. Vaughan, be required to execute and deliver to the plaintiff herein a trustee's deed in proper form, conveying to plaintiff said lots A and I, 6 and 7, and lots 10 to 29, both inclusive, of Talbott Place, an addition to Kansas City, Mo., on a payment by plaintiff to said trustee of the sum of $17,500, being the amount bid for said lots by plaintiff at said sale, and for such other and further relief as to the court may seem proper. The second count of plaintiff's petition was identical with the first count down to the prayer, with the following superadded, "Plaintiff further alleges that plaintiff and said Charlotte G. Harwood were not prepared to bid on said real estate as a whole, but they were prepared to bid on each and every parcel thereof, and that with competitive bidding on the parcels on the part of said Caesar, plaintiff, and said Harwood each of said lots would have sold for a fair price, and all the lots for much more in the aggregate than the $21,500 for which said real estate as a whole was knocked down to said Caesar; that said Vaughan and said Blakeley, the...