Martin v. Paxson

• Citation: 66 Mo. 260
• Parties: MARTIN, Plaintiff in Error, v. PAXSON, et al.
• Decision Date: 31 October 1877
• Court: United States State Supreme Court of Missouri

66 Mo. 260

MARTIN, Plaintiff in Error,

v.PAXSON, et al.

Supreme Court of Missouri.

October Term, 1877.

Error to Morgan Circuit Court.--HON. GEORGE W. MILLER, Judge.

A. W. Anthony for plaintiff in error.

1. Brand was not a trustee, having never accepted the trust either by signing the deed, or by assent, oral or written, nor by any act indicating such acceptance, nor does it appear that he had any notice whatever of his appointment. Hill on Trustees, edition of 1854, top pages 303, 304, 306; 2 Am. Law Reg. (N. S.,) pp. 651, 652, 653, 706, 713. A fair construction of the statute sustains the same view. Rev. Code 1855, p. 1554. The first section was not changed until the revision of 1865; and the second not until 1872. By the law of 1855, it is provided that “If any trustee, in a deed of trust to secure the payment of a debt,” &c. This statute evidently contemplates that there must be in fact and in law a trustee, else there would be no authority to substitute the sheriff, or any one else, to act for a person or officer who never had an existence. To hold that Brand was a trustee in this case would lead to the strange doctrine that a person may be a trustee without acceptance, without assent, or any notice whatever of his appointment; and that another might be appointed to act for him, when he never had any notice, or any chance to act for himself. There is a mutuality in all trusts, fatal to such construction. The action of the circuit court, therefore, in the attempted substitution was wholly void.

2. If the trustee be clothed with the legal estate, I do not see how the title could vest in him without delivery or acceptance; and no person could be substituted in his stead. If the donation of the power was valid without acceptance, then it extended to Brand's executors or administrators, who are named in the deed as his successors in the trust; and the circuit court could only appoint when the trust was about to fail for want of a trustee; and upon a proper presentation of the facts.

3. The trust deed provides that notice shall be given in a newspaper in Morgan, “or any adjoining county,” but the sale must be made at Boonville. This is void for uncertainty, as the notice had a scope of some five or six counties. Such a contract is against public policy also, and is void.

4. When the notice was filed to substitute the sheriff as trustee, a notice should have been served on Brand. The trustee is a trustee for the debtor. Carter v. Abshire, 48 Mo. 300; Chesley v. Chesley, 49 Mo. 540; George v. Middough, 62 Mo. 549. No notice was given, and the proceedings were, therefore, absolutely void. None could be given, as Martin was at the time in the State of Texas, within the Confederate lines. See dissenting opinion in De Jarnette v. De Giverville, 56 Mo. 440; 14 Am. Law Reg. (N. S.) 129.

Draffen & Williams for defendants in error.

1. The deed of trust passed the legal title to the land to Brand, with power of sale upon default. There was no evidence that he refused to accept the trust, and it was upon the public record of the county. It might be that if Brand was sued for neglect, he could raise this objection, but most certainly plaintiff cannot. Bailey v. Lincoln Academy, 12 Mo. 174.

2. Nothing is said in the statute indicating that the power of appointment is only to be exercised when the trustee has signed the deed, and then refused to act. The language is, “If any trustee in a deed of trust to secure the payment of a debt, shall die * * or remove from the State without having completed the performance of the duties imposed on him by the deed of trust,” the court may, on application of any person interested, appoint the sheriff to act as trustee in his place.

3. The parties had a right to regulate, by their contract, the kind of notice of sale the trustee should give.

HOUGH, J.

This was an action of ejectment for certain land in Morgan county. On the 12th day of September 1860, the plaintiff executed a deed of trust conveying the land in controversy to H. H. Brand, as trustee, to secure the payment of a promissory note, of even date therewith, executed by him to E. N. Warfield, and made payable twelve months thereafter. In the event of default in the payment of said note, the trustee, his executor, or administrator, was authorized, by the provisions of said deed, to sell the property described, at public sale, “at the court house door in the city of Boonville, and county of Cooper, for cash, first giving at least thirty days public notice of the time, terms and place of said sale, and of the property to be sold, by advertisement in some newspaper printed and published in said county of Morgan, or adjoining county.”

In 1863, Martin, the plaintiff, left his residence in the State of Missouri and went to the State of Texas, where he remained until the year 1867; and from the time he went to Texas, until the close of the war, he was continuously within the Confederate lines. At the April term, 1864, of the Morgan circuit court, J. P. Beck, as beneficiary under the trust deed aforesaid, made application under the first section of the statute in relation to trustees, (Rev. Stat. 1855, p. 1554,) to have the sheriff of the county appointed trustee in the place of Brand, who, as was stated in the affidavit, had removed from the State, without executing the trust; and the order was made as prayed. This order is meagre and inexplicit, and certainly not a model for imitation; but it refers to the application, which is full and precise, and in the absence of record testimony showing that it is equally referable to some other application, we incline to...