Markwell v. Markwell

• Decision Date: 26 June 1900
• Citation: 157 Mo. 326,57 S.W. 1078
• Parties: MARKWELL v. MARKWELL et al.
• Court: Missouri Supreme Court

57 S.W. 1078

157 Mo. 326

MARKWELL v. MARKWELL et al.

Supreme Court of Missouri, Division No. 2.

June 26, 1900.

MORTGAGES — TRUST DEED — FORECLOSURE — SALE IN PARCELS — PURCHASE BY ADMINISTRATOR OF GRANTOR — PRICE — INADEQUACY — PARTIES — TRUSTEE — HUSBAND AND WIFE — HOMESTEAD.

1. Where land was sold under a trust deed, and the purchaser executed a deed of trust of the land to B., he was a necessary party to a suit to set aside the sale and declare the deed to the purchaser and the trust deed to B. void.

2. That land sold under a trust deed only brought about one-third of its value is not such inadequacy of price as to justify setting aside the sale on that ground alone.

3. Where plaintiff joined with her husband in deeds of trust to secure the payment of certain debts, she cannot assert a homestead right against those instruments, or any one claiming under them, and the act of a probate court in setting off a homestead to her was ineffective.

4. Plaintiff joined with her husband in the execution of trust deeds to secure debts. At a sale under such deeds the trustee sold the land in parcels because plaintiff claimed a homestead in part of it. Plaintiff was under no obligation to pay the debts secured by the trust deeds, and made no request that certain conditional bids be accepted. Held, that plaintiff could not complain because the land was sold in parcels, and the conditional bids for some of it not accepted.

5. Where a deed of trust did not require the trustee to subdivide the property before sale, or accept bids for parcels of the whole tract, he was not required to do so, — especially when it brought more as a whole than was offered for it in parcels.

6. The administrator of the estate of the grantor in a deed of trust to secure debts is not prohibited from purchasing the land at the trustee's sale.

7. An answer alleging that necessary parties defendant were not made parties to the suit properly raises the question, without naming the party omitted.

Sherwood, J., dissenting.

Appeal from circuit court, Platte county; William S. Herndon, Judge.

Suit by Millie P. Markwell against James W. Markwell and others to set aside a trustee's sale and declare the deed thereunder void, and also to set aside a deed of trust executed by the vendee. Decree for plaintiff, and defendants appeal. Reversed.

This is a suit to set aside the trustee's sale under a deed of trust of 80 acres of land, and to have a deed thereto from said trustee, A. R. Jack, to defendant James W. Markwell, and a deed of trust from said James W. Markwell and wife to the Wells Banking Company declared to be null and void. The court below rendered a decree in accordance with the prayer of the petition, from which defendants, after unavailing motions for new trial and in arrest, appeal.

Jas. W. Coburn, for appellants. W. M. Paxton and N. B. Anderson, for respondent.

BURGESS, J.

On February 25, 1895, Henry C. Markwell owned in fee 80 acres of land in Platte county, to wit, W. ½ of the S. E. ¼ of section 21, township 52, of range 21, which he then, and up to the time of his death, November 20, 1895, occupied with his family as a homestead. On said 28th day of February he executed his note to Clinton Cockrill for the sum of $500, and on July 13th next following he gave to said Cockrill another note for the sum of $250, — said notes to become due 12 months after their respective dates; and at the time of the execution of each note said James W. Markwell (the plaintiff, his wife, joining with him) executed a deed of trust on said land to one A. R. Jack, as trustee, to secure its payment. At the time of the death of said James W. Markwell he left surviving him the plaintiff, his widow, and Henry C. Markwell, a son by a former marriage; who became the administrator of his father's estate. Thereafter a homestead of 30 acres off of the south side of said land was attempted to be assigned to the widow in the probate court of said county. The personal property was insufficient to pay the debts due by the estate, and Jack, the trustee in the deeds of trust, at the request of the beneficiary therein advertised the land for sale on the 28th day of September, 1896. When the land was offered for sale the widow, by her attorney, appeared and announced her claim of homestead in the 30 acres. W. M. Paxton then bid $870 for the whole 80 (that being the amount of the debt, interest, and costs), subject to the widow's homestead rights in the 30 acres on the south end of the tract which had been set off to her, but the trustee refused to accept the bid. The trustee then offered for sale the 50 acres of the north end of the tract, to which Mrs. Markwell objected, except upon the condition that the bidders would bid for the 50 acres the entire debt and costs. W. S. Wells then bid $500 on the 50 acres, but Paxton bid higher, and continued to run it up on him until Wells bid $700, when it was knocked off to him at that price. This left unpaid on the debts $170, to be raised on the sale of the remaining 30 acres, which had been attempted to be set off to Mrs. Markwell as a homestead. After the sale of the 50 acres to Wells, Paxton offered to pay the whole debt, interest, and costs, and take an assignment of the two notes, without recourse, which the trustee declined to accept. The trustee then offered for sale the 30-acre tract, when Paxton offered $170 for it, subject to plaintiff's homestead rights, which was refused. Wells then bid $200, and then Paxton bid $170 for 25 acres off of any side of it the trustee might name; and, this not being accepted, Anderson bid $170 for any 10 acres of the 30-acre tract the trustee might name, which was also declined. The 30 acres were then struck off to Wells, and the trustee on the same day made his deed as such to defendant James W. Markwell, for whom Wells was bidding. On the same day the Wells Banking Company, to secure the payment of the $900 loaned to James W. Markwell to buy the 80 acres of land sold at said sale, and to secure an antecedent debt (the whole debt amounting to $1,372), took from said James W. Markwell a deed of trust on the said 80 acres of land and other lands. There was evidence showing that the land was worth from $35 to $40 per acre; that that was the value of land in that neighborhood. Witness Paxton said that the land was worth double the amount bid; that, "if everything had been right, he might have run the land up to $1,500"; that on inquiry he found the land to be worth $30 per acre, "but he did not care about speculating in land unless there was some profit in it." It was admitted that the debts proved up against the estate of Henry C. Markwell were $1,499.62, counting in the two Cockrill notes, and that all the personalty had been exhausted and the estate had no other assets. The petition alleges. and the answer admits, that after defendant Markwell purchased the land he and his wife executed a deed of trust thereon to A. D. Burnes, as trustee, with power of sale, to secure the payment to the Wells Banking Company of the sum of $1,372, thereby vesting in him the legal title to the land. The answer also...