Polliham v. Reveley

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

81 S.W. 182

181 Mo. 622

POLLIHAM, Appellant, v. REVELEY et al

Supreme Court of Missouri, First Division

May 25, 1904

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

Affirmed.

G. Wm Senn and Rassieur & Rassieur for appellant.

(1) The matters of the power of sale and appointment of the attorney in fact are creatures of the contract, contained in the deed of trust, and not of law, and are to be interpreted and construed as a contract. Reynolds v. Kruff, 144 Mo 433; Martin v. Paxson, 66 Mo. 260; Cassady v. Wallace, 102 Mo. 575; Powers v. Kueckhoff, 41 Mo. 425; Stewart v. Brown, 112 Mo. 171; Lipscomb v. Ins. Co., 138 Mo. 17. (2) The attorney in fact of the trustee was properly appointed under the provision therefor by the deed of trust -- he was simply the agent of the trustee, continuing the latter's proceedings, and under the latter's advertisment of sale. 18 Ency. of Law (1 Ed.), p. 871, et seq.; 1 Bouvier's Law Dic. (Rawle's Rev.), p. 192; Idem, vol. 2, p. 714; R. S. 1899, secs. 4938, 913. (3) It is not sufficient that there be proven an opportunity for fraud, or that mere suspicious circumstances may be connected with the sale, but proof of its unfairness and that it was fraudulent must be produced. Powers v. Kueckhoff, 41 Mo. 425; Bridenbecker v. Prescott, 3 Hun (N. Y.) 419; Laclede v. Richardson, 156 Mo. 270; Holdsworth v. Shannon, 113 Mo. 508; Judge v. Booge, 47 Mo. 545; Barnard v. Duncan, 38 Mo. 170; Dover v. Kennerly, 38 Mo. 469. (4) It is no fraud ipso facto that the trustee appoint as his attorney in fact, the attorney of the purchaser of the debt -- the trustee himself could acquire the debt and yet exercise the power of sale; at most, such a circumstance presents merely an opportunity for fraud and unfairness. Hardwicke v. Hamilton, 121 Mo. 465; Cloud v. Loan Co., 52 Mo.App. 318; Ohnsorg v. Turner, 13 Mo.App. 533; s. c., 87 Mo. 127; Cassady v. Wallace, 102 Mo. 580; Reynolds v. Kroff, 144 Mo. 447; Powers v. Kueckhoff, 41 Mo. 430. (5) The power of attorney did not require record to become effective or to convey notice -- it was sufficient for the attorney in fact to produce it at the time of the sale; and the proof of recording of the power with and attached to the trustee's deed is no evidence that it was not so produced at the time of sale. Dausch v. Crane, 109 Mo. 323; Diel v. Stegner, 56 Mo.App. 535; Pope v. Railroad, 99 Mo. 400. (6) Mere inadequacy of price of itself, unattended by fraud or unfair dealing, is not a distinct ground for setting aside a sale; the inadequacy must be unconscionable, such as to shock the moral sense, to justify the inference of fraud from that fact alone. Hardwicke v. Hamilton, 121 Mo. 475; Reynolds v. Kroff, 144 Mo. 447; Holdsworth v. Shannon, 113 Mo. 519; Ohnsorg v. Turner, 13 Mo.App. 533; Keith v. Browning, 139 Mo. 196; Harlin v. Nation, 126 Mo. 102; Markwell v. Markwell, 157 Mo. 326; Hoffmann v. McCracken, 168 Mo. 337. (7) Fraud will not be presumed when all the facts of the case are consistent as well with honesty and fair dealing. Henderson v. Henderson, 55 Mo. 534; Ohnsorg v. Turner, 13 Mo.App. 541; S. C., 87 Mo. 127; Kerstner v. Vorweg, 130 Mo. 200; Hardwicke v. Hamilton, 121 Mo. 474; Hoeller v. Hoffner, 155 Mo. 589; Bank v. Tobacco Co., 155 Mo. 602. (8) It is a presumption of everyday application, in and out of court, in favor of fair dealing and the performance of duty and the orderly conduct of business. Guest v. Hannibal, 72 Mo. 258; White v. Ingram, 110 Mo. 481; Ivey v. Yancey, 129 Mo. 509; Wendover v. Baker, 121 Mo. 296; Addis v. Graham, 88 Mo. 202.

T. J. Rowe for respondents.

BRACE P. J. Robinson, J., absent.

OPINION

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 first day of March, 1897, and recorded in said office of recorder of deeds in book 93 at page 370.

"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 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 the trial of this case; and the defendant Albert L. Reveley has not been in possession thereof since October, 1898.

"At the time of acquiring said title to said premises as aforesaid, and by deed of trust dated the twenty-second 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 twenty-seventh 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; 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.

"On the eleventh 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 second 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 second day of June, 1900. Before such sale, and on the thirty-first 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 second 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 thereafter on the second 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 G. 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 second day of June, 1900, and recorded in the office of the recorder of deeds of said county of...