Pence v. Jamison
| Decision Date | 02 October 1917 |
| Docket Number | 3300. |
| Citation | 94 S.E. 383,80 W.Va. 761 |
| Parties | PENCE v. JAMISON ET AL. |
| Court | West Virginia Supreme Court |
Submitted September 25, 1917.
Rehearing Denied Dec. 4, 1917.
Syllabus by the Court.
One who acts as agent of the borrower in procuring a loan, and is paid for his services out of the money so procured, is not disqualified to take the acknowledgment of the borrower to a deed of trust given to secure such loan.
A sale by a trustee who is the agent or attorney of the creditor secured by the deed of trust under which such sale is made will not be set aside for that reason alone, but his acts in the execution of the trust will be closely scrutinized with a view to seeing that he has performed his duties with entire impartiality.
A deed of trust made to secure promissory notes or other evidences of debt which are intended to be negotiated or assigned and transferred by the grantor to third persons is valid although no money passes at the time of its execution; the consideration subsequently furnished by the purchaser of the notes will relate back and sustain the deed of trust.
An advertisement for sale by a trustee of a town lot upon which there is a house, which describes such lot by metes and bounds and gives the number of the lot upon the town plat and the deed book and page where such plat is recorded, is sufficient without stating that there is a building upon such lot and the character thereof.
Where a deed of trust provides that any sale made thereunder shall be for cash sufficient to pay the debt secured and upon time as to the residue, and the property is advertised by the trustee to be sold upon such terms, a sale made by the trustee under such advertisement for cash will not be set aside, where it appears that the purchaser at such sale desired to pay the entire purchase money on the day of sale, and the grantor in the deed of trust assented thereto.
A sale made by a trustee under a deed of trust will not be set aside because the trustee refused to continue such sale at the request of the debtor, upon the representation that negotiations were pending to procure the money to discharge the lien of the deed of trust, where similar representations theretofore repeatedly made by such debtor had been barren of results.
A sale of real estate under a deed of trust will not be set aside because a trustee in a subsequent deed of trust covering the same real estate advertised it for sale at the same time, and joined the first trustee in such sale and in the deed conveying the same to the purchaser. The sale and conveyance made by the trustee in the first deed of trust left nothing to be sold or conveyed by said second trustee, and his joining in such sale and the deed made in pursuance thereof in nowise affected its validity.
A trustee in a deed of trust is under no duty to seek the aid of a court of equity in the administration of the trust, unless it appear that there are prior liens of uncertain amount or whose validity has not been determined, or some other equity which would render uncertain the title of a purchaser at a sale made by such trustee.
A sale of real estate by a trustee will not be set aside upon the ground of inadequacy of price, unless such inadequacy is so great as to shock the conscience of the chancellor. Such a sale will not be disturbed where the price realized is approximately three-fourths of the estimated value of the property.
Appeal from Circuit Court, Mercer County.
Action by Jennie K. Pence against W. A. Jamison and others to set aside a sale under a deed of trust. Decree for Jamison, and plaintiff appeals. Affirmed.
Samuel W. Williams, of Bluefield, for appellant.
Sanders & Crockett and L. J. Holland, all of Bluefield, for appellee.
The plaintiff needing the sum of $3,000 for the purpose of completing a building on a lot owned by her in the town of Bramwell, applied to the defendant L. J. Holland to secure a loan of that amount for her. For his services she agreed to pay him 5 per cent. of the amount desired, or $150. The defendants Kirkpatrick & Howard, of Lynchburg, Va., were applied to by Holland, and they secured the money from one of their clients, Holland dividing the fee of $150 with them. The plaintiff executed a deed of trust dated the 4th day of August, 1911, to secure this loan which was divided into three bonds, one for $500, due at one year from date; one for $1,000, due at two years from date; and one for $1,500, due at three years from date. The money, less the $150 agreed to be paid to Holland, was duly paid over to the plaintiff, and the bonds were delivered to a man by the name of Hutter who furnished the money. When the building was completed plaintiff found that she did not have enough money to pay for the materials and labor which had been used in the same, and to secure this remaining indebtedness she executed a deed of trust, on the 27th day of January, 1912, conveying the property to L. J. Holland, trustee. It appears that when the first bond of $500 became due it was not paid, but arrangements were made to carry it, and the interest was paid thereon. When the second bond of $1,000 fell due it was not paid, but like arrangements were made to carry it, together with the first $500 bond, until the last one of $1,500 became dué, making the whole $3,000 fall due at the same time, to wit, on the 4th day of August, 1914. When this time arrived the plaintiff was still unable to pay the debt, and after considerable negotiation the time of payment was extended six months, to wit, until the 4th day of February, 1915. She did not then pay the debt, and after considerable correspondence and negotiation between her and Kirkpatrick & Howard they, on the 16th day of March, 1915, advertised the property to be sold on the 16th day of April, 1915. The creditors secured under the deed of trust to L. J. Holland above referred to, had not been paid, and upon their demand Holland also advertised the property for sale under that deed of trust, said sale to be made on said 16th day of April, 1915. The defendant F. S. Kirkpatrick, one of the trustees in the deed of trust to secure the $3,000, and L. J. Holland, trustee in the other deed of trust, went to Bramwell on the 16th day of April, 1915, and made sale of the property, at which sale the defendant W. A. Jamison became the purchaser for the sum of $5,600, which sum was paid in cash and the property conveyed to him by said trustees on that day. This suit was then instituted by plaintiff for the purpose of setting aside said sale.
The first ground assigned for setting aside the sale is that L. J. Holland, who took the acknowledgment to the deed of trust executed by plaintiff and her husband to Kirkpatrick & Howard, trustees, to secure the $3,000 debt, was so interested because he received the sum of $150 for procuring this loan, that the acknowledgment taken by him was void, and the acknowledgment being void, and she being a married woman, the deed executed by her was void. Many authorities are cited to the effect that neither the grantee in a deed of trust nor the creditor secured thereby is competent to take the acknowledgment, and also that one interested in the transaction is likewise incompetent. But it is contended by the defendant that Holland had no such interest. The only connection that he had with this transaction, so far as the record discloses, is that at the plaintiff's solicitation he procured this loan for her, for which he was paid the sum of $150, which sum he divided with Kirkpatrick & Howard, who assisted him in securing the money for the plaintiff. It does not appear that he was in any wise interested in the bonds executed by Mrs. Pence, or in her real estate. It will make no difference to him from a pecuniary point of view whether the deed of trust is upheld, or whether it is overthrown. Manifestly the sort of interest referred to by the authorities is one that would be affected by the deed of trust, that is, such an interest as would make Holland's pecuniary position different should the deed of trust be overthrown from what it would be should the deed of trust be upheld. This position is clearly supported by the authorities. Nixon v. Post, 13 Wash. 181, 43 P. 23; Vizard v. Robinson, 180 Ala. 349, 61 So. 959; Scott v. Thomas, 104 Va. 330, 51 S.E. 829; Joines v. Johnson, 133 N.C. 487, 45 S.E. 828; Mudra v. Groeling, 89 Neb. 829, 132 N.W. 389; Gilbert v. Garber, 69 Neb. 419, 95 N.W. 1030; Nicholson v. Gloucester Charity School, 93 Va. 101, 24 S.E. 899; Bardsley v. German-American Bank, 113 Iowa 216, 84 N.W. 1041. In 1 Corp. Jur. 804, referring to the disqualification of an officer to take an acknowledgment because of interest, it is said:
"In order to disqualify an officer he must have a direct pecuniary interest in the consideration for the instrument, or in upholding such instrument after it is executed."
This, we think, is the true test to be applied in such cases. Holland had no such interest.
The next reason assigned for setting aside the sale is that Kirkpatrick & Howard, who were trustees in the deed of trust given to secure the $3,000 debt, were interested parties. It is charged that in fact they were the beneficiaries in the deed of trust, and if not the beneficiaries that they were so connected with the beneficiary as to make any sale made by them under the deed of trust void. A careful review of the evidence discloses the facts, in so far as they affect the interest of Kirkpatrick & Howard, to be that they are attorneys-at-law residing in the city of Lynchburg, Va., and that they secure loans of money for parties desiring the same from clients of theirs having money to invest; that on this occasion they secured this $3,000 loan for the plaintiff from a...
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