Maloney v. Webb

• Decision Date: 12 December 1892
• Parties: MALONEY et al. v. WEBB et al.
• Court: Missouri Supreme Court

20 S.W. 683

112 Mo. 575

MALONEY et al. v. WEBB et al.

Supreme Court of Missouri, Division No. 1.

December 12, 1892.

SALES UNDER POWERS — NOTICE — PROVISIONS — SALE TO BIDDER UNABLE TO PAY PRICE — SETTING ASIDE — INADEQUATE PRICE.

1. Deeds of trust given to secure notes provided that the sales thereunder should be made "at the courthouse door in the city of Carthage, Jasper county, Missouri," and they were advertised to take place there. At the time of the sale, court was in session in the second story of the building, and the door to the court room was reached by an open stairway, running from the street to a platform in front of the door, over which had been erected a vestibule, with an opening at the head of the stairway, looking down the same on the street, and at this opening the sale was made. Held, that the sale was made at the place required in the trust deed.

2. Where the property under a deed of trust is sold for cash, and the debtor bids the highest price therefor, which he is unable to pay, it is not error to sell to the next highest bidder.

3. A sale by a trustee of property deeded to him to secure an indebtedness will not be set aside on the sole ground that the price paid was only half its value.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Action by Thomas Maloney and Marina Maloney against E. T. Webb, J. W. Aylor, D. M. Page, J. M. Whitsett, James Luke, Byron Ash, Edgar J. Thacker, and W. S. Chinn, to set aside the sale of certain real estate. Judgment for plaintiffs. Defendants appeal. Reversed.

E. O. Brown and Karnes, Holmes & Krauthoff, for appellants. Thomas & Hackney, for respondents.

BRACE, J.

This is an action in the nature of a bill in equity by Marina Maloney and her husband, Thomas Maloney, in which the plaintiffs seek to set aside a sale made by W. S. Chinn, as trustee, in three deeds of trust executed by the Maloneys, conveying certain real estate in Jasper county to him to secure the payment of certain debts therein described of the said Thomas Maloney to the defendant E. T. Webb. The decree of the circuit court was in favor of the plaintiffs, and the defendants appeal. The defendants are the trustee in the deeds of trust, the cestui que trust, and the purchasers at the sale, or those who stand in their shoes. The substance of the plaintiffs' petition is: That plaintiffs are husband and wife; that on the 7th of April, 1884, the said Marina Maloney was seised in fee in her own right of certain real estate described in the petition; that on that day her husband, the said Thomas Maloney, executed to the defendant E. T. Webb his two promissory notes of that date, — one for $1,100, due six months after date, with 6 per cent. interest, to be compounded annually, and a like note for $1,000, due in 12 months; that on that day, without other consideration, she joined with her said husband in a deed of trust to the said Chinn, conveying her said land to him to secure said notes; that at the same time she indorsed and delivered to said Webb "a note — her separate property — which she held against the First Methodist Church of Joplin, balance of principal and interest due thereon at date of delivery being $1,500, as collateral security for the said two promissory notes of the said Thomas Maloney to the said Webb, which (church note) the said Webb agreed to enforce against said church property, and apply the proceeds on the said two Maloney notes, said church property being amply worth the face of said church note; that on the same day, to further secure the payment of said two Maloney notes, the said Thomas Maloney, his wife joining and relinquishing her dower, executed another deed of trust to said Chinn, conveying certain other real estate described in the petition, of which he was seised in fee; that the said Maloney was not really indebted to the said Webb in the amount evidenced in said notes, for the reason that there was wrongfully included therein an indebtedness of Marina Maloney of $563, which had theretofore been fully paid by her, and $350 of usurious interest wrongfully charged by the said Webb; that afterwards, on the 25th day of March, 1886, the said Marina Maloney having become indebted to the said Webb in the further sum of $866, the said Thomas Maloney executed his other note therefor, due three months after date, and to secure the same the plaintiffs executed another deed of trust on all the above land to said Chinn. trustee; that afterwards, in 1887, the said Webb converted the said church note of $1,500 to his own use, entered satisfaction of the mortgage given to secure it, and, without giving credit therefor on said two Maloney notes first aforesaid, or for said sum of $563, erroneously embraced in the amount thereof, or for said sum of $350, usurious interest included therein, but intending to cheat and defraud plaintiffs, induced said Chinn to sell said real estate, which on the 13th day of September, 1887, said trustee attempted to do by a sale under said deeds of trust, at which the said real estate of Marina Maloney was sold to the said defendant Aylor for the sum of $1,600, and the said real estate of the said Thomas Maloney was sold to the said defendants Page, Luke, and Whitsett for the sum of $805, and deeds to said purchasers therefor executed by said trustee; that said trustee's sale was illegal, in that no legal and sufficient notice thereof was given by said trustee before sale day, and because the sale was not an open and fair sale in open market at the courthouse door, and because the said Webb, Aylor, and D. M. Page conspired together to deter bidders from attendance at said sale, and because the said property was sacrificed at said sale for less than one fourth of its face value at a forced sale, and because it was made for the whole amount of said notes, when but a small part thereof remained due and unpaid; wherefore plaintiffs pray that said trustee's sale be set aside, that the amount remaining due on said three promissory notes be ascertained, and that plaintiffs be permitted to redeem on payment thereof. The answer, after admitting the execution of the deeds of trust and the promissory notes, the sale by the trustee, which it...