Phoenix Trust Co. v. Holt
| Citation | 279 S.W. 714 |
| Decision Date | 30 December 1925 |
| Docket Number | No. 24662.,24662. |
| Court | United States State Supreme Court of Missouri |
| Parties | PHŒNIX TRUST CO. et al. v. HOLT et al. |
Appeal from Circuit Court, Rails County; Charles T. Hays, Judge.
Suit by the Pœnix Trust Company and others against Ed S. Holt and others. Decree for plaintiffs, and defendant May T. Gill appeals. Reversed and remanded, with directions.
E. L. Alford, of Perry, for appellant.
D. M. Stout and Drake Watson, both of New London, for respondents.
Statement.
On September 4, 1922, the above-named plaintiffs filed in the circuit court of Rails county, Mo., a petition for injunction against appellant May T. Gill et al., in which it is alleged that the plaintiff, Phoenix Trust Company, was the owner of a deed of trust executed by plaintiffs S. L. McMurry and wife, conveying to E. W. Jewett, trustee, the southwest quarter of section 8, and the west half of the northwest quarter of section 17, all in township 53, range 6 west, to secure the payment of a promissory note dated January 30, 1920, for the principal sum of $12,000, bearing interest at the rate of per cent. per annum, payable semiannually on the let days of March and September of each year respectively, according to the tenor of 10 interest coupons of $360 each, of even date with the principal note of $12,000, which was to become due on the 1st day of March, 1925. The petition averred default in the payment of the debt secured by said deed of trust, and the sale of said lands under the provisions thereof by Ed S. Holt, sheriff of Rails county, Mo., as substituted trustee. It charged fraud and collusion between said sheriff and defendant May T. Gill, by which the latter became the purchaser of said lands for $7,000, which was only a small part of their actual value. It is alleged that the sale of said land was unfairly conducted by Sheriff Dolt, etc. An injunction was asked to restrain said dolt, as trustee, from executing a deed conveying said lands to defendant May T. Gill, etc. On September 7, 1922, the court made and entered of record an order granting a temporary injunction, restraining said Holt from delivering to defendant Gill a trustee's deed for said lands, and also restraining said Gill from taking possession of said lands until the further order of the court. Upon a final hearing of the case the court made the injunction against defendants perpetual, and defendant May T. Gill alone appealed to this court.
The evidence is undisputed that S. L. McMurry and wife were the owners of the lands heretofore described, and that they executed and delivered to the Phoenix Trust Company the $12,000 note and interest coupons aforesaid, which were secured by a deed of trust on said lands. It appears from the evidence that E. W. Jewett, named as the trustee in said deed of trust, removed his residence from Missouri to California about the year 1921; that the interest coupons, which became due September 1, 1921, and March 1, 1922, were past due and unpaid prior to July 10, 1922, although demand of payment had been made; that said Phoenix Trust Company was the owner of said $12,000 note and the unpaid coupons aforesaid, when they became due by the terms of said deed of trust; that defendant Ed S. Holt was appointed by said Phoenix Trust Company as trustee to succeed Jewett, the former trustee; that Ed S. Holt, during the proceedings aforesaid, was the legally qualified and acting sheriff of Ralls county, Mo.; that he accepted said trust on or about July 12, 1922. It appears from the evidence that Holt, as trustee, furnished the Center Herald, a newspaper published in Rails county, Mo., a copy of the advertisement of the sale of said lands, which said copy was furnished him by the Phoenix Trust Company with blanks left therein to be filled; that the advertisement did not reach said newspaper in time for insertion therein where it was expected to appear, but was inserted in the following week's issue of said paper. The above necessitated the notice to commence in the issue of July 27, 1922, fixing the date of the trustee's sale for August 19, 1922, and under this notice, thus run, the land was sold. The evidence discloses that the Phoenix Trust Company is located at Ottumwa, Iowa; that the trust company directed Holt to furnish it with a copy of the sale advertisement, as it appeared in the paper; that, in compliance with this request, Holt directed Mr. Hulse, the publisher of above paper, to forward to said trust company at Ottumwa, Iowa, a copy of said advertisement; that he gave the publisher notice twice to send said advertisement to plaintiff once when the advertisement was changed, and again when published. Mr. Hulse testified that he personally sent to the trust company on both of above occasions the above advertisement. H. S. Merrick, president of the Phoenix Trust Company, testified that his company did not receive either copy of said advertisement; that the first notice which his company received, in reference to said sale, was on August 18, 1922, the day before the sale was to be made, when the Phoenix Trust Company at Ottumwa, Iowa, received a letter from Sheriff Holt, dated August 17, 1922, inclosing a copy of the advertisement, which showed that the lands were to be sold under the foreclosure proceedings on August 19, 1922; that upon the receipt of the above letter the Phoenix Trust Company, on August 18, 1922, sent to Sheriff Holt a telegram, dated August 18, 1922, as follows:
Sheriff Holt testified that he received the above telegram on the night of August 18, 1922.
The letter from Sheriff Holt was dated at New London, Mo., August 17, 1922. It was received by plaintiff on the morning of August 18, 1922, and the body of same, without signature, reads as follows:
The letter written by the Phoenix Trust Company to Holt on August 18, 1922, reads as follows:
This letter to Holt was sent by registered mail, and was received by Holt on August 21, 1922, the second day after the sale. On August 21, 1922, Holt answered the above letter from Hervey, as follows:
The Phœnix. Trust Company did not send any one to attend the sale. It made some effort to reach Mr. Hughes, who was in Missouri, but did not find him in time to have him attend the sale. The evidence shows that the usual time for sales of this character in said county was from 1:30 to 2:30 in the afternoon. It appears from the evidence that Sheriff Holt, the trustee, not finding any one present or around the courthouse to represent the Phoenix Trust Company, delayed the sale for the purpose of giving said company an opportunity to have a representative on hand; that, in response to inquiries made of him as to when the sale would take place, Holt assured them that the sale would certainly take place, but that he was waiting awhile, thinking that possibly some one would appear to represent the trust company; that he waited until about 4 o'clock, and, concluding that no other interested parties would appear, he had his auctioneer announce on the streets of New London that the sale would take place, and he then proceeded to sell the land at the courthouse door; that some 20 or 30 persons were present at the sale; that Judge May T. Gill made a bid on the land for $7,000, and the auctioneer, after crying for higher bids for a considerable time, sold the land to Judge Gill for above amount, and took his check for $7,000 in payment of same. Holt advised Judge Gill that he did not have time to prepare a deed for him, but would do so at his earliest opportunity.
The trial court, in its finding of facts, held "that defendants Holt and Gill were not guilty of fraud or collusion." After carefully reading the record, we fully concur in exonerating defendants Holt and Gill from any collusion, fraud, or wrongdoing in regard to the sale of said land. The evidence, in regard to the value of the land, is very conflicting. At the time of this sale there appeared to be but little real estate selling. The land, according to the testimony of defendant's witnesses, was worth from $8,400 to $9,600, while, according to the testimony of plaintiff's witnesses, the land in controversy, at the time of the sale, was reasonably worth $14,400. Taking the evidence as a whole, we think the land would have been reasonably worth, if not put up at a forced sale, the sum of $12,000. On the other hand, if fully advertised, we doubt very much whether it would have brought $10,000 under a forced "sale.
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Shumate v. Hoefner
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