Pace v. Pierce

• Citation: 49 Mo. 393
• Parties: JAMES PACE, Respondent, v. WILLIAM B. PIERCE, Appellant.
• Decision Date: 29 February 1872
• Court: Missouri Supreme Court

49 Mo. 393

JAMES PACE, Respondent,

v.WILLIAM B. PIERCE, Appellant.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Linn Court of Common Pleas.

A. W. Mullins, for appellant.

I. The trustee received at the sale a sufficient amount to pay off the debt. He advertised and sold the property and executed a written conveyance thereof to the purchaser, strictly in accordance with the terms of the deed of trust. That sale and conveyance passed to the purchaser whatever title was held by the plaintiff as trustee to said property. No actual delivery of the property by the trustee to the purchaser was necessary, nor is that question material in this case. (Hill. Sales, 98, § 12; Ridgway v. Bowman, 7 Cush. 268, 272; Gibson v. Stevens, 8 How. U. S. 384, 400; Stewart v. Spedden, 5 Md. 433, 448; 7 Gill & J., Md., 407, 418.) But even if there had been no deed of writing, yet from the nature and situation of the property, an actual handling from one to another being impossible, no delivery of possession was necessary to transfer the plaintiff's title to the purchaser. (Hill. Sales, 89, § 5.) By the extinguishment of the debt secured by the deed of trust the powers of the trustee were at an end. (Charter v. Stevens, 3 Denio, 33; 1 Hill. Mortg. 480.)

II. The trustee had no interest whatever in the subject-matter of the action. (Wagn. Stat. 999, § 2.) The case of Lacy, Trustee, v. Gibony, 36 Mo. 320, relied on by counsel for plaintiff, is not an authority in point in this case. In that case the purchaser did not pay his bid, nor did the trustee execute to him a deed or other writing to convey the property, nor was the debt paid off or the deed of trust satisfied.

Burgess & Mansur, for respondent.

Personal property could not be conveyed by deed unless accompanied by a delivery; besides, Pace being trustee, was the proper person to prosecute the suit. (Lacy v. Gibony, 36 Mo. 320.)

BLISS, Judge, delivered the opinion of the court.

Stephenson & Prince purchased of the administratrix of G. H. Schricklin a certain steam mill as personal property, and executed to the plaintiff a trust deed to secure a part of the purchase-money, for which two $1,000 notes were given. These notes maturing, the trustee advertised and sold the property to one C. C. Stephenson for $2,442, a part of which was paid, and notes with security were given for the balance. But the defendants had in the meantime obtained possession and refused to give it up; wherefore the plaintiff brought suit, alleging his right of possession and claiming damages for the conversion of the property. He recovered a judgment for $2,875, and defendants appealed.

The question presented is whether the plaintiff has any such interest in the property as to entitle him to bring this suit. It is decided in Lacy v. Gibony, 36 Mo. 320, that the trustee in a deed of trust of personal property to secure a debt, has, after the maturity of the debt, a right to the possession of the property, and that this right continues after he has sold the same, for the purpose of enabling him to deliver possession to the purchaser. The decision is based upon the fact that in the sale of...