Springfield Engine & Thresher Co. v. Donovan

• Decision Date: 27 February 1894
• Citation: 120 Mo. 423,25 S.W. 536
• Parties: SPRINGFIELD ENGINE & THRESHER CO. v. DONOVAN et ux.
• Court: Missouri Supreme Court

25 S.W. 536

120 Mo. 423

SPRINGFIELD ENGINE & THRESHER CO. v. DONOVAN et ux.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

MORTGAGES — SALE — IRREGULARITY — LEGAL TITLE.

The fact that a trustee's sale has not been advertised for 3 successive weeks 20 days before the sale, as required by Act March 27, 1885, does not prevent the trustee's deed from passing the legal title; and the purchaser may maintain ejectment thereon unless the grantor offer to redeem.

Appeal from circuit court, Marion county; Thomas H. Bacon, Judge.

Ejectment by the Springfield Engine & Thresher Company against Daniel Donovan and Josephine, his wife. Judgment for defendants. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by BURGESS, J.:

Action of ejectment for the possession of a piece of ground 120×123 feet, being a part of lot 1 in block 2, Sloan's addition to the city of Palmyra. The petition is in the usual form, and the answer a general denial. It was admitted on the trial, however, that the defendants were in possession of the property at the time of the commencement of the suit. Plaintiff offered, and read in evidence without objection, a deed of trust on the property in controversy dated June 29, 1886, from defendants to Thomas Cocke, trustee, to secure the payment of $1,650, evidenced by three promissory notes of even date therewith, for $550 each, executed by defendants to plaintiff, and payable on the first days of October, 1886, 1887, and 1888, with 8 per cent. interest per annum. The deed of trust contained, among other provisions, the following: "Now, therefore, if the said parties of the first part, or any one of them, shall well and truly pay off and discharge the debts and interest expressed in said notes, and every part thereof, when the same shall become due and payable, according to the true tenor, date, and effect of said notes, then this deed shall be void, and the property hereinbefore conveyed shall be released, at the cost of the said parties of the first part; but, should the said first parties fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same, or any part thereof, shall become due and payable, according to the true tenor, date, and effect of said notes, then the whole shall become due and payable, and this deed shall remain in force; and the said party of the second part, or, in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of Marion county, Missouri, at the request of the legal holder of said notes, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at the courthouse door in the city of Palmyra, Marion county, Missouri, for cash, — first giving 30 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 city of Palmyra, — and, upon such sale, shall execute and deliver a deed in fee simple to the property sold to the purchaser or purchasers thereof, and receive the proceeds of the sale; and any statement of facts or recital by the said trustee, in relation to the 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 notes were all due, and remained unpaid on the 22d day of June, 1889, when the sheriff of Marion county, acting instead of the trustee named, — he having removed from the state, — at the request of plaintiff, who was still the owner and legal holder of said notes, sold the premises to pay them, as provided in the deed of trust, and executed to plaintiff a deed of that date, duly acknowledged, delivered, and recorded. This deed was next offered in evidence by the plaintiff, and de...