Riggs v. Owen

• Decision Date: 13 February 1894
• Citation: 25 S.W. 356,120 Mo. 176
• Parties: Riggs, Plaintiff in Error, v. Owen
• Court: Missouri Supreme Court

25 S.W. 356

120 Mo. 176

Riggs, Plaintiff in Error, v. Owen

Supreme Court of Missouri, Second Division

February 13, 1894

Error to DeKalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

S. G Loring for plaintiff in error.

(1) Under the evidence in the case there never has been a foreclosure of this deed of trust from Cummings and wife to Glazier as trustee for defendant Owen, in proof. The rule is well recognized in this state that sales made by trustees under the naked power contained in deeds of trust must be made in strict compliance with the terms and conditions contained in the deed of trust or they are void. Wolf v Ward, 104 Mo. 151; Daviess v. Hess, 103 Mo. 39; Brinkerhoff v. Vincenz, 52 Mo. 441; Ttaffill v Shroeder, 62 Mo. 147. (2) The court erred in permitting Judge Spencer to pass on and overrule plaintiff's motion for a new trial in this case.

Stephen S. Brown for defendant in error.

(1) The petition states that a portion of the building at a door of which the land is alleged to have been sold, was at the time "temporarily used as a courthouse." This is equivalent to an assertion that it was "the house provided by the county for the purpose, in which are held the various sessions of the courts of the county, and in which are generally the offices of the county officials; for that is the meaning usually and ordinarily given to the term 'courthouse in a county of Missouri.'" Schanewerk v. Hoberecht, 22 S.W. 949; Hambright v. Brockman, 59 Mo. 52. (2) And such a building is the "courthouse," within the meaning of the provisions of the deed of trust, and a sale at its door would be valid. Hambright v. Brockman, supra; Napton v. Hurt, 70 Mo. 497; Stewart v. Brown, 112 Mo. 171. (3) Judge Goodman had the right to call Judge Spencer in if for any cause the former was unable to hold the term of court or any part of it. R. S. 1889, sec. 3322.

OPINION

Gantt, P. J.

This is a suit in equity to redeem a tract of land lying in DeKalb county from a certain deed of trust executed by one Cummings and wife to Henry E. Glazier, trustee, on the third day of October, 1883, to secure a promissory note made by said Cummings to defendant, of the same date, for $ 1,200, with compound interest at the rate of ten per cent. per annum, and due one year after date. A sale was made by the trustee under the deed of trust, on the eleventh day of April, 1885, for the sum of $ 1,325, and it is the validity of that sale to foreclose the mortgagor's equity of redemption, which is in question in this case. The plaintiff claims the equity of redemption through a sheriff's sale of the interest of Cummings.

The petition states that the defendant caused Glazier, who was his agent and attorney and attended to his large mortgage and landed interests in DeKalb county, "to pretend to act as trustee in said deed of trust, and for the purpose of preventing competition, and to enable this defendant to bid in said lands at the amount of his debt, when in truth and fact, said land was then of the value of $ 3,000, to pretend to sell all the right, title, interest and estate of the said William Cummings in and to said land, not at the courthouse door, in the town of Maysville, for that building was destroyed by fire on the morning of December 25, 1878, and had never been rebuilt, neither at the courthouse door of the temporary courthouse, as required by said deed of trust, but at the court room door, said door being at the top of a very long and exceedingly steep and narrow stairway, and at said pretended sale, this defendant was the only bidder for all of said land, and said Glazier, as trustee aforesaid, pretended to strike off and sell all of said lands to him for the price and sum of $ 1,325; that this defendant did not pay the said Glazier, as trustee or otherwise, the said sum of $ 1,325 or any part thereof, neither was the said sum of $ 1,325 or any part thereof indorsed on said note, but that said sale was voluntary and made for the purpose of defrauding as aforesaid. That said Glazier did not, prior to the eleventh day of April, 1885 (the day of said pretended sale) give thirty days' notice, public or otherwise, of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in said town, as required by said deed of trust, but that this defendant, in pursuance of said plan to cheat and defraud as aforesaid, caused said Glazier to advertise that said pretended sale would be made at the door of the circuit court room, a private door in the building, a portion of which was temporarily used as a courthouse."

The deed of trust provided that in case of default in the payment of the debt or interest or any part thereof, the trustee might proceed to sell the land therein described, "at public vendue, to the highest bidder, at the courthouse door in the town of Maysville, DeKalb county, Missouri, for cash, first giving thirty days' public notice of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in the town of Maysville, and upon such sale shall execute and deliver a deed in fee simple of the property sold to the purchaser thereof, and receive the proceeds of said sale, and any statement of facts or recital by the said trustee in relation to the request to sell, nonpayment of the money secured to be paid, the advertisement, sale, receipt of the money and the execution of the deed to the purchaser, shall be received as prima facie evidence of such fact."

The trustee's deed from Glazier to Owen recites the default, the request to sell, the receipt of the purchase money, and all the other matters of which it is made prima facie evidence. The advertisement stated that the property would be sold "at the door of the circuit court room," in said city. On the execution of the trustee's deed the defendant took possession of the lands in suit.

One Jones, through whom the plaintiff claims title to the equity of redemption, testified that the old DeKalb county courthouse was burned in December, 1878, and that the present courthouse was first occupied in the spring of 1886, and that between said dates the circuit court of said county was alternately held in Mr. Glazier's hall and Mr. Orr's hall; that these halls were on the second floors, and the court room door was on the second floor with no door between the entrance to the stairway and the court room door. There was a long stairway opening from the street, going up to the second floor.

Glazier testified that the note secured by the deed of trust was never in his possession; that no money passed at the sale and that he does not know whether a credit was...