Noland v. Bank of Lee's Summit

• Decision Date: 04 June 1895
• Citation: 31 S.W. 341,129 Mo. 57
• Parties: Noland v. Bank of Lee's Summit et al.; White, Appellant
• Court: Missouri Supreme Court

31 S.W. 341

129 Mo. 57

Noland v. Bank of Lee's Summit et al.; White, Appellant

Supreme Court of Missouri, Second Division

June 4, 1895

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed.

Gates & Wallace for appellant.

(1) The advertisement of sale sufficiently described the property. Newman v. Jackson, 12 Wheaton, 571; Schoch v Birdsall, 48 Minn. 441; Wilson v. Page, 76 Maine, 279; Dickenson v. Small, 64 Md. 395; Jackson v. Harris, 3 Cow. 241; Judd v O'Brien, 21 N.Y. 186; Colcord v. Bettinson, 131 Mass. 233; Reading v. Waterman, 46 Mich. 107; Nau v. Brunette, 79 Wis. 664; Loveland v Clark, 11 Col. 265; Streetor v. Tesby, 151 Mass. 291; Powers v. Keuckhoff, 41 Mo. 425; Sumrall v. Chaffin, 48 Mo. 402; Stephenson v. January, 49 Mo. 465; Gray v. Shaw, 14 Mo. 341; Beatie v. Butler, 21 Mo. 313. (2) There is no evidence of the amount due on the note and the decree of the court is founded on a guess. (3) The decree is also erroneous because it finds a tender had been made to the defendant.

J. G. Paxton for respondent.

(1) The sale under the trust deed was void because the advertisement did not describe the land to be sold. The language of the notice can not be held to describe a lot in Howard's second addition. See Revised Statutes, 1889, section 7093. Wolff v. Ward, 104 Mo. 127. (2) The amount due on the note was capable of accurate computation. (3) A valid tender of the remainder due on the note was twice made. A tender to the president and cashier of the bank was sufficient. 7 Wait's Actions and Defenses, p. 582. A tender before suit is not required to entitle plaintiff to his right to redeem.

OPINION

Burgess, J.

This is an action, by the beneficiary and purchaser under a second deed of trust, to redeem from a prior sale under a former deed of trust, on the ground of alleged insufficiency in the description of the property, a town lot in Howard's second addition to the town of Lee's Summit in Jackson county, Missouri. The bank of Lee's Summit, the beneficiary in the first deed of trust, and White, the purchaser at the trustee's sale under that deed of trust, were made defendants. The court found in favor of the bank and against the defendant White, allowing plaintiff to redeem the property on payment to him of the sum of $ 436.76, within thirty days after the date of the decree, that sum including the debt and interest, sums paid for insuring and repairing the property, and for taxes, less amount of rents received. White appealed.

The property was described in the notice of sale as lot number 6, in block 2, of William B. Howard's addition to the town of Lee's Summit. Howard has laid off and platted three additions to the town, viz.: W. B. Howard's addition to the town of Strother (the old name of the town); W. B. Howard's second addition to the town of Lee's Summit, and W. B. Howard's third addition to the town of Lee's Summit. The lot in question is in the second addition, which is the only one that contains a lot 6, block 2. The addition to the town of Strother contains no blocks at all, and the third addition begins with block 12.

There is no allegation in the petition that plaintiff was in any manner deceived or misled by the notice, or that the property by reason thereof did not bring its value, or want of good faith and fairness upon the part of the trustee; therefore, the salient question for the consideration of this court is as to the validity of the notice of sale. If the notice was void in that it did not correctly describe the property to be sold then it must needs be that the sale by the trustee was also void, and White acquired no title by his purchase.

Sec. 7093, R. S. 1889, with respect to notices of sales under mortgages and deeds of trust, provides that: "Such notice shall set forth the date and book and page of the record of such mortgage or deed of trust, the grantors, the time, terms and place of sale, and a description of the property to be sold," etc. As the statute provides that a description of the property to be sold must be given, its requirements must be observed, and the description given be with reasonable clearness and certainty. As was said in Powers v. Kueckhoff, 41 Mo. 425. "The greatest impartiality and good faith are required of trustees, and, as they are invested with the extraordinary power of transferring one man's property to another, they must pursue their authority with precision to render their acts valid. The notice given by them should contain such facts as reasonably to apprise the public of the place, time and terms of sale, and the property to be sold. But mere omissions and inaccuracies in these respects, not calculated to mislead, and working no prejudice, will not be regarded."

The notice recited that the property would be sold under a deed of trust executed by Annie M., and Clarence B. Given, and then described the property as lot 6 in block number 2 of William B. Howard's addition to...