Polliham v. Reveley

• Decision Date: 25 May 1904
• Citation: 181 Mo. 622,81 S.W. 182
• Parties: POLLIHAM v. REVELEY et al.
• Court: Missouri Supreme Court

81 S.W. 182

181 Mo. 622

POLLIHAM v. REVELEY et al.

Supreme Court of Missouri, Division No. 1.

May 25, 1904.

MORTGAGES — TRUST DEEDS — POWERS OF TRUSTEE — DELEGATION — INVALID SALE — EFFECT.

1. A trustee in a deed of trust cannot delegate the trust or power of sale to a third person, unless expressly authorized to do so by the deed.

2. A power to foreclose a deed of trust by sale contained therein provided that the trustee, whether acting in person or by attorney in fact thereunto authorized under seal, or, in case of his death, his successor, might sell the property at public sale to the highest bidder, and on such sale should execute a deed to the purchaser, and that such trustee should receive the proceeds of the sale, out of which he should pay the expenses of the trust, compensation of the trustee, money advanced to pay taxes, etc., the debt secured by the deed, and the remainder, if any, to the grantor or his personal representatives. Held, that the power so given was personal to the trustee, and did not authorize him to delegate the trust or power of sale to another.

3. A trustee under a deed of trust which was a first lien on the property, on which two subsequent trust deeds existed, advertised the property for sale, but before the sale the debt secured was assigned to W. In violation of the deed of trust, the trustee executed a power of attorney to W.'s representative, authorizing him to conduct the sale, and such attorney sold the property, which was of the actual value of $6,000, to one who purchased for W., for $2,500, with intent that W. should obtain title for less than the value of the property to the prejudice of the subsequent lienors and the holder of the title. Held, that such sale was effective only to transfer to W. the indebtedness secured by the deed of trust, and that a decree directing a resale of the property was proper.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Ejectment by George B. Polliham against Nannie Reveley and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

G. Wm. Senn and Rassieur & Rassieur, for appellant. T. J. Rowe, for respondents.

BRACE, P. J.

This was an action in ejectment, instituted in the St. Louis county circuit court to recover possession of a tract of land containing 12.44 acres, situate in said county, which turned in the lower court upon an equitable defense set up in the answer of the defendant Nannie Reveley. The finding and decree of the circuit court furnish a sufficient statement of the case. They are as follows:

"The defendant Albert L. Reveley acquired title to the premises described in the petition by deed from Martha E. Bobb and her trustee to said defendant dated February 12, 1897, and recorded in the office of the recorder of deeds of St. Louis in Book 93, at page 351, and by deed from the said Martha E. Bobb and her husband dated February 24, 1897, and recorded in the said office of the recorder of deeds in Book 93, at page 352, and by quitclaim deed from John H. Bobb and wife to the said Albert L. Reveley dated the 1st day of March, 1897, and recorded in said office of recorder of deeds in Book 93, at page 370. That said title was acquired by the said Albert L. Reveley for the defendant Nannie (who is otherwise named Anna E.) Reveley and Sallie Reveley, who are his sisters; and that, after acquiring such title, he, the said Albert L. Reveley, placed his sisters in possession of said premises, and under his said title, and they have so been in possession up to the time of this trial of this case; and the defendant Albert L. Reveley has not been in possession thereof since October, 1898. That at the time of acquiring said title to said premises as aforesaid, and by deed of trust dated the 22d day of February, 1897, and recorded in the office of the recorder of deeds of said county of St. Louis in Book 93, at page 353, the said Albert L. Reveley conveyed said premises to Joseph Franklin, as trustee, to secure to Susan Franklin the payment of certain promissory notes executed by the said Albert L. Reveley in said deed of trust described as follows, to wit: Seven negotiable promissory notes payable to the order of the said Susan Franklin, all dated the 27th day of February, 1897 — one being a principal note for the sum of two thousand dollars, and payable three years after date, and the others being six interest notes for the semiannual interest on said principal, being for the sum of sixty dollars each, and payable respectively in six, twelve, eighteen, twenty-four, thirty, and thirty-six months after date; all of said notes bearing interest from maturity at the rate of eight per centum per annum. That the said Albert L. Reveley was justly indebted to the said Susan Franklin for the sum of two thousand dollars at the date of said notes and deed of trust. That in and by said deed of trust it was provided (among other things) that, if default should be made in the payment of said promissory notes at maturity thereof, respectively, according to the tenor of the same, and the said notes, or any part thereof, should not be paid at such maturity, then the said conveyance should remain in force, and the said Joseph Franklin (whether acting in person or by attorney in fact thereunto authorized by law) might proceed to sell said premises conveyed in said deed of trust, or any part thereof, at public vendue or outcry at the east front door of courthouse in the said county of St. Louis, to the highest bidder, for cash, first giving twenty days' notice of the time, terms, and place of said sale and of the property to be sold by advertisement published in some newspaper printed in the said county of St. Louis, and upon such sale should execute a deed in fee simple for the property sold to the purchaser thereof, and out of the proceeds of such sale should pay the costs and expense of executing said trust and all indebtedness secured by said deed of trust so far as the same might remain unpaid. That on the 11th day of May, 1900, default had been made in the payment of said principal note for two thousand dollars and four of the said interest notes for the sum of sixty dollars each, and by reason thereof the said Joseph Franklin, under the power of sale conferred upon him by said deed of trust, proceeded to advertise the said real estate for a sale to be had on the 2d day of June, 1900, and for that purpose published in a newspaper printed in said county of St. Louis a notice of the time, terms, and place of sale and of property to be sold thereat, stating therein that he, the said trustee, would sell the property at the east front door of the courthouse of St. Louis county on the 2d day of June, 1900. That before such sale, and on the 31st day of May, 1900, the said Joseph Franklin executed his power of attorney, appointing G. William Senn as his attorney for him and in his name to sell the said premises on the 2d day of June, 1900, at the same time and place, and upon the terms specified in said notice of sale, and to make proper conveyance of said property so sold to the purchaser thereof at said sale, thereby giving to said Senn the same powers as he, the said Joseph Franklin, might exercise under and by virtue of said deed of trust, which said power of attorney was duly signed and sealed by the said Joseph Franklin; and that thereafter, on the 2d day of June, 1900, at the said courthouse door, and at the time designated for such sale, and upon the terms specified in said notice as well as in the said deed of trust, the said William Senn, as such attorney in fact, for and on behalf of the said Joseph Franklin as such trustee, sold the said premises at public auction, for cash, to the plaintiff herein, at and for the price and sum of two thousand five hundred dollars, which was by the said plaintiff paid to the said trustee through his attorney in fact; and that thereupon, in pursuance of said sale, the said Joseph Franklin, by his attorney in fact, executed and delivered to the said plaintiff a deed in fee simple conveying the legal title of said property so sold to the said George B. Polliham, which said trustee's deed is dated the 2d day of June, 1900, and recorded in the office of the recorder of deeds of said county of St. Louis in Book 119, at page 453. That the said plaintiff under and by virtue of said deed of trust and trustee's deed has continued to hold such legal title to the time of the trial of this cause. That the defendants Nannie Reveley and Sallie Reveley on the 5th day of October, 1900, and ever since that time, have withheld the possession of said premises from the plaintiff, and during all of said time the monthly value of the rents and profits thereof has been twenty-five dollars.

"And the court, upon allegations contained in the separate answer and cross-bill of the defendant, Nannie Reveley, finds the facts to be as follows: That after the execution of said deed of trust to Joseph Franklin, as trustee, by the said Albert Reveley, the said Albert L. Reveley executed another deed of trust dated the 1st day of March, 1897, to Wilbur F. Parker, as trustee, conveying to him the same property described in the petition, to secure to Martha E. Bobb an indebtedness of twenty-six hundred dollars represented by one principal note for that sum, with six interest notes, payable three years after date, each for the sum of seventy-eight dollars, for the semiannual interest on said principal, and payable six, twelve, eighteen, twenty-four, thirty, and thirty-six months after date, the said notes being dated on the day first aforesaid, and said deed of trust being recorded in said office of recorder of deeds in Book 93, at page 555, which said principal note of $2,600 and those of said interest notes becoming due twenty-four, thirty, and thirty-six months after date still remain unpaid except the payment of one hundred and twenty-five dollars made thereon on the 4th day of October,...