Rossett v. Fisher

• Citation: 52 Va. 492
• Court: Virginia Supreme Court
• Decision Date: 22 August 1854
• Parties: ROSSETT v. FISHER & al.

52 Va. 492

ROSSETT v. FISHER & al.

Supreme Court of Appeals of Virginia.

August 22, 1854

1. Real estate is conveyed in trust to secure debts. The grantor in the deed has at the time but an equitable title, but is entitled to have the legal title. It is an abuse of his power by the trustee to sell the property before getting the legal title.

2. The trustee having sold the property for one-fourth of its value without getting the legal title, and the principal creditor secured by the deed having become the purchaser: And the grantor being absent at the time, and the money to pay the debts having been forwarded to his agent at the place of sale, and being at the time in the post-office at the place and not delivered to the agent, though in the expectation of receiving it he had several times applied at the office for the letter, a court of equity will set aside the sale.

Rossett by deed of trust dated the 12th of April 1844, conveyed certain real estate, consisting of a lot of ground with a brick house thereon, in the town of Ripley in the county of Jackson, to Joseph Smith, in trust to secure the payment of two single bills, one to Andrew Wilson & Co. for forty-three dollars and seventy cents, dated the same day with the deed, and payable one year thereafter, with interest from the date, and the other to Henry J. Fisher, for one hundred and fifty-two dollars, dated the 2d of January 1844 and to indemnify Fisher as security for costs in the case of Hassler's lessee, & c. v. King. The deed provided that in case of default in the payment of the said debts and exoneration of said security in one year from the date of the deed, the trustee should sell the property for ready money, at public auction, before the front door of the court-house of Jackson county, and apply the proceeds to the satisfaction of the purposes of the trust. Rossett having made default, the trustee, at the request of Fisher, after giving thirty days' notice of the time, place and terms of sale, by causing an advertisement thereof to be posted at the door of the said court-house, did, on the 23d of June 1845, (that being the first day of a quarterly term of said county,) at the door of the said court-house, expose the said property to public sale for ready money, when the said Fisher, being the highest bidder, became the purchaser, at the price of two hundred dollars. And the property was accordingly conveyed to him by the trustee, who received the purchase money, and applied it to the purposes of the trust and made a report of the sale according to law.

In July 1847 Rossett filed his bill in the Circuit court of said county, for the purpose of setting aside the said sale stating in the said bill that for a short time previous to the expiration of the trust he had been in Pennsylvania for the purpose of raising money to discharge the debts secured by the deed, having left D. G. Morrill of Ripley as agent to attend to his business; that shortly before the expiration of the trust he forwarded, or caused to be forwarded, to his said agent, through the medium of the mail, a draft from the treasury department at Washington, on the Commercial Bank of New York, for the sum of two hundred and twenty dollars, with directions to be applied towards the liquidation of the said debts; that the draft arrived at the post-office in Ripley two days before the day advertised for the sale of the property; but from some cause, either accidental or designed, the post-master neglected to hand the letter containing the draft to the said agent, although repeated applications were made therefor, until two days after the sale, when the agent received the draft and tendered it to Fisher, who refused to receive it. That when the property was exposed to sale Fisher bid two hundred dollars for it, and directed the sale to be suspended for the time then present; that late in the afternoon, near sundown, of the same day, when there were no bidders present, as complainant was advised, but the said Fisher, the sale was resumed, and no further bid being made, the property was cried out to Fisher at his said bid of two hundred dollars; the complainant's said agent being present and forbidding the sale. That the sum of two hundred dollars was a greatly inadequate price for the property, which was worth one thousand two hundred dollars; and complainant believed would have sold for the same, if it had not been represented to some who were anxious to purchase, that the sale would be postponed; and that Fisher had frequently, after the execution of the deed of trust and before the sale, made different offers for the property, greatly exceeding the price at which he purchased it, but complainant rejected them as inadequate. Other statements are contained in the bill, but it is unnecessary to notice them. Fisher, Smith the trustee, and Wilson & Co. were made defendants.

In August 1847 Fisher filed his answer, denying many, if not most, of the material allegations of the bill. He denies that the property, (the imperfect and dilapidated condition of which he minutely describes,) could under any circumstances have been sold for as much as one thousand two hundred dollars; and attributes the sacrifice, if any, at which it was sold, to the fact that the sale was forbid by Rossett's agent, and also to the condition of the title at the time of the sale. In regard to the latter, he states, that Rossett had no deed for the property, and only incumbered his equitable right thereto, the legal title being in A. N. Kinnaird of Wood county, whose wife had and still has a claim of dower therein; " that it was very uncertain whether Kinnaird would make the deed or not; for if there is not now, there formerly was, a suit depending on the equity side of Jackson county Superior court, brought by respondent for Rossett against Kinnaird, to compel him to make this very deed; which suit or another similar one had to be brought at the sale under the trust; all of which was well known to respondent, and it is believed also to most, if not all of the capitalists present at the sale; and it is believed most of the capitalists of Jackson county were present." He further states that after getting the trustee's deed, he turned his attention to getting in the legal title outstanding in Kinnaird; and on the 1st day of August 1845 drew a deed which was by him executed and acknowledged on the 4th day of September 1845, and came to respondent's hands some months thereafter, when it was placed on record. A copy of this deed is filed with the answer.

In October and November 1847 Wilson & Co. and the trustee Smith filed their respective answers. That of the former it is unnecessary to notice. The latter states in his answer that there was a large crowd at the sale; that at its commencement between 10 and 11 o'clock, D. G. Morrill, representing himself to be Rossett's agent, forbade the sale, which was disregarded, and the sale went on; that after getting two or three, or perhaps more bids, respondent suspended the sale until after dinner, when he recommenced it, and there being no other bid, was about to close the sale, when Morrill requested him to leave it open as long as he could; representing that a few, perhaps two or three days before, Rossett had gone to Point Pleasant, and would very likely be back before sundown, and perhaps be able to effect an arrangement and obviate the sale; that with Fisher's consent the sale was suspended until near sun-down; that shortly before the sale was closed respondent went to several who had during the day bid, or talked of bidding, and let them know that the sale would shortly be closed at the court-house door, and at more than one place gave public notice that the property would there be cried for the last time; and after crying it thirty or forty minutes at the court-house door, without receiving another bid, he cried it out to Fisher, who requested respondent not to make a deed for the property until he should see respondent again. That in fact the deed was not made until the date of the acknowledgment, (which is the 30th of July 1845,) though it bears date on the day of sale. That it was not true that any person was prevented from bidding at the sale in consequence of the time it was closed. That he knows of no representation having been made to any person anxious to purchase, that the sale would be postponed; and if he had known of any such representation, he would at once have undeceived the person to whom it was made; and that he would not, acting as trustee, (and knowing his duty to be to act as the agent of both parties,) have sold property under such circumstances as are alleged in the bill.

Sundry depositions were taken in the case; and among them the depositions of Smith the trustee, Morrill the agent of Rossett, Wetzel the deputy postmaster at Ripley, and Hassler. Smith proved substantially the same facts stated in his answer. Morrill proved that he was Rossett's agent in Jackson, at and before the time of the sale informed Rossett, who was absent, that the property would probably be sold under the deed of trust, and furnished him with a statement of the probable amount necessary to discharge the deed. Rossett replied that he would make arrangement with Hassler to have the requisite amount forwarded for that purpose. Previous to the sale deponent had frequently called at the post-office at Ripley and enquired for a letter in which he expected a draft to discharge the deed of trust, and was as often informed by the post-master that there was no such letter. When the trustee was about to proceed to make the sale, deponent, as the agent of Rossett, forbade it, stating that he had received...