Middleton v. Baker

• Decision Date: 02 December 1914
• Docket Number: No. 16840.,16840.
• Citation: 262 Mo. 398,171 S.W. 328
• Parties: MIDDLETON v. BAKER et al.
• Court: Missouri Supreme Court

171 S.W. 328

262 Mo. 398

MIDDLETON v. BAKER et al.

No. 16840.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

MORTGAGES (§ 369) — SALES — VALIDITY.

Where a sale by the trustee in a deed of trust was made for 3 or 4 per cent. of the value of the property and about 8 per cent. of the debt, during the absence of the creditor, who innocently mistook the hour at which the sale would be made, but who appeared a few minutes after the sale and asked the trustee to set aside the sale, the trustee was obliged to set aside the sale and resell the property, provided the bidders had not dispersed, or readvertise the property for sale at a future date.

Appeal from Circuit Court, Callaway County; N. D. Thurmond, Judge.

Action by James A. Middleton against Frank T. Baker and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action brought in the circuit court of Callaway county, by the plaintiff against the defendants, to set aside a sale of real estate, sold under a deed of trust, executed to secure borrowed money. The grounds for relief, as charged, were fraud, mistake, surprise, and inadequacy of consideration paid for the land, etc. The judgment was for the plaintiff, and the defendants appealed to the Kansas City Court of Appeals, and by that court certified here under the Constitution. The record is short, the facts few, and practically no conflict in the testimony. The facts of the case are substantially as follows: On and prior to July 1, 1905, N. M. Baker, Lidia Baker, William Baker, and Nancy Baker owned 40 acres of land situate in Callaway county, Mo., particularly described in the petition. On that date they made and delivered to the plaintiff, James A. Middleton, their promissory note for the sum of $227.20, bearing 8 per cent. interest, due one day after date, and executed the deed of trust conveying said land to secure said loan. That, said note not having been paid when due, the plaintiff requested the defendant John H. Buchanan, the sheriff of said county, the substituted trustee (the one named in the deed of trust having died), to advertise and sell the land to pay said note. That in pursuance to said request, and according to the terms of said deed, the trustee advertised the land for sale at the west front door of the courthouse at Fulton, on August 1, 1910, between the hours of 9 o'clock in the forenoon and 5 o'clock in the afternoon, and on said day, at the hour of 2 o'clock p. m., he sold said land to the defendant Frank T. Baker, for the sum of $26, a stranger to all the transactions. All the Bakers save the last one mentioned were negroes; and the latter was an old friend of the...