Oakey v. Bond

• Decision Date: 30 July 1926
• Docket Number: 25113
• Citation: 286 S.W. 27
• Parties: OAKEY v. BOND et al
• Court: Missouri Supreme Court

286 S.W. 27

OAKEY v. BOND et al

No. 25113

Supreme Court of Missouri, First Division

July 30, 1926

Henry A. Bundschu, Kenneth McC. De Weese, and Leon M. Bailey, all of Kansas City, for appellant.

Robert E. Rooney, of Kansas City, for respondents.

OPINION

ATWOOD, J.

This appeal is from a judgment in the circuit court of Jackson county favorable to respondents, who were defendants in an equity suit brought to set aside a trustee's sale of lot 18, block 6, Bunker Hill, an addition to Kansas City, Mo and to redeem the property.

Plaintiff's petition alleges that previous owners of the above property executed a promissory note in the principal sum of $ 1,000 bearing 7 per cent. interest, payable semiannually on the last days of April and October of each year, and secured the same by a deed of trust on said property, wherein defendant Robert E. Rooney was named as trustee; that plaintiff, Lula A. Oakey, thereafter became the owner of said property; that on or about April 1, 1922, respondent Bessie Walls became the owner of said note; that thereafter, by reason of default in payment of semiannual interest falling due on April 30, 1922 defendant Rooney, at the request of defendant Walls, sold said real estate under said deed of trust on June 10, 1922, to defendant Grace Bond, for the sum of $ 1,050; that plaintiff had no notice of said sale until July 4, 1922, but on July 7, 1922, plaintiff tendered the money for the redemption of said property, and is still ready, willing, and able to redeem the same. The petition further alleges that defendant Grace Bond in truth and fact bought said real estate for defendant Bessie Walls at a grossly inadequate sum, through a conspiracy between them to acquire said property and deprive plaintiff thereof. The case was tried without a jury upon the joint answer of defendants setting up a general denial.

The evidence showed that plaintiff purchased the property in question on April 19, 1922, for $ 3,000, and as a part of the purchase price assumed payment of the aforesaid $ 1,000 note; that defendant Rooney was a relative by marriage of defendant Walls, and was living at her home in June, 1922; that on April 30, 1922, an installment of interest amounting to $ 28 matured on the $ 1,000 note secured by the property; that all interest previously falling due had been paid by the former owner, and plaintiff was neither acquainted with, nor had she dealt with, defendant Walls prior thereto; that early in May, 1922, plaintiff received a postal card from defendant Walls, reading as follows:

'Miss Oakey: Your interest on the house on West Prospect is past due. Please mail check to Mrs. Bessie Walls, 3225 Oak street, city.'

It further appeared from the evidence that plaintiff was ill at the time she received the above card and did not know that defendant Walls was the owner of the note, but immediately upon receipt of said card she attempted to communicate with defendant Walls, and, being unable to locate her, called for defendant Rooney, to whom she had been informed the money should be paid, but failed to get him; that, after calling for him four or five times without success, she left word at his office that she wished to speak to him, but he failed to call her; that without further notice the said trustee Robert E. Rooney advertised the property for sale, and on June 10, 1922, the same was sold for $ 1,050, and trustee's deed executed and delivered conveying said property to defendant Grace Bond; that plaintiff had no actual notice of this sale until July 4, 1922, when she attempted to collect rent from her tenant Cummines, who informed her that the property had been sold; that she immediately got into communication with Mr. Rooney who advised her that the property had been foreclosed and sold on June 10th; that on the next day, July 5th, plaintiff, together with William McMasters, went to see defendant Bond and offered to pay her $ 1,200 for the property, which offer was refused; that Mr. Silverman, assistant cashier of the First National Bank, also accompanied her to see Mrs. Bond the second time, and they tendered defendant Bond the sum of $ 1,100 in legal tender notes, which she refused.

I. Appellant's first point is that the trustee failed to properly execute his trust, but we think it is without merit. The trustee proceeded to advertise the property in accordance with the terms of the deed of trust when he was requested to do so by the owner of the note. No further notice was required of him. A careful reading of Hurst Automatic Switch & Signal Co. v. Trust Co. (Mo. Sup.) 216 S.W. 954, loc.. cit. 959, cited by appellant, does not hold to the contrary. The evidence does not disclose any unfairness on the part of the trustee in connection with the sale. The cases cited by appellant on this point are not applicable under the facts before us.

II. Appellant next urges that the sale should be set aside on account of inadequacy of price, coupled with inequitable circumstances attending the sale. The property brought a little more than one-third of its alleged value. Under our decisions, this inadequacy is not so gross as to shock the moral sense and justify setting the sale aside solely on that ground, nor does it appear from the evidence that the trustee's sale was not fairly...