Spurlock v. Sproule

• Citation: 72 Mo. 503
• Parties: SPURLOCK v. SPROULE, Appellant.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 503

SPURLOCK

v.SPROULE, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Cole Circuit Court.--HON. G. W. MILLER, Judge.

AFFIRMED.

Patrick & Frank for appellant.

1. Plaintiff is estopped by his conduct and presence at the sale. He directed how the sale should be made, procured an auctioneer to cry it and after it was done received payment for the auctioneer's services from the agent of the holder of the note and paid it to the auctioneer. Here was a clear consent on the part of the plaintiff that some one else should execute the trust than the trustee named. Tatum v. Holliday, 59 Mo. 426: Hereford v. National Bank, 53 Mo. 330; Austin v. Loring, 63 Mo. 22; Evans v. Snyder, 64 Mo. 516; Moreman v. Talbott, 55 Mo. 392; Hart v. Giles, 67 Mo. 175; Landrum v. Union Bank, 63 Mo. 48.

2. By the unreasonable delay in bringing this suit, without any excuse for the laches, the plaintiff has slept upon his rights, and the court will not relieve him. Bliss v. Prichard, 67 Mo. 181; Kelly v. Hurt, 61 Mo. 466; Bradshaw v. Yates, 67 Mo. 226: Wells v. Perry, 62 Mo. 573; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Stevenson v. Saline Co., 65 Mo. 425.

3. The only circumstance relied upon by plaintiff as entitling him to redeem, is the absence of the trustee. A sale under a deed of trust given to secure the payment of an indebtedness differs from a mortgage. In a deed of trust the parties constitute their own court and mode of procedure with respect to the method of foreclosing the deed and obtaining payment of the debt. Turner v. Johnson, 10 Ohio 204, 208; Gray v. Shaw, 14 Mo. 341.

4. There was no right of action in Gibbs when the suit was instituted. He had parted with his title.

5. Spurlock was not entitled to be substituted as plaintiff. This right only exists under the statute where the interest of the party plaintiff has been transferred subsequent to the institution of the suit. In this case the plaintiff has no interest in the suit when the suit was instituted. The real party in interest must sue; (R. S., § 3462;) that is, the party having the legal title. Gibbons v. Gentry, 20 Mo. 468; Richardson v. Means, 22 Mo. 495; Gardner v. Armstrong, 31 Mo. 535; People v. Booth, 32 N. Y. 397; Ensworth v. Barton, 60 Mo. 511.

A. W. Anthony for respondent.

In case of a bill to redeem equity adopts the statute of limitations. 3 Cruise Dig., 508; Bradshaw v. Yates, 67 Mo. 221. A mortgage with power of sale may be transferred so as to invest the purchaser with the power to sell, but not so a deed of trust like this. Pickett v. Jones, 63 Mo. 195. If the mortgagee purchases at his own sale, the mortgageor may redeem, and his getting an auctioneer to sell does not alter the case. He cannot purchase by an agent. Neither can a co-trustee purchase. Gaines v. Allen, 58 Mo. 537; Thornton v. Irwin, 43 Mo. 153. And if the sale is regular, in all other respects, if the purchaser buys at his own sale bv himself, his agent or attorney, the sale is void on grounds of public policy, though a fair price was obtained. No estoppel can avail the appellants on facts alleged before the sale. The evidence shows that no improvements have been made, no transfers made, nor any correspondence had between the parties since the sale, so there cannot be an estoppel on matters arising anterior or subsequent to the sale.

Gibbs clearly had the right to redeem; ( Young v. Ruth, 55 Mo. 515; Potter v. Herring, 57 Mo. 184; Culligan v. Wingerter, 57 Mo. 241;) and that right was transferable. 2 Story Eq. Jur., § 1015; 2 Cruise Dig., 126; Foster v. Potter, 37 Mo. 525. The filing of the petition is the commencement of the suit. Gosline v. Thompson, 61 Mo. 471. The court exercised a sound discretion in substituting plaintiff, Spurlock. Wag. Stat., 1050, § 9.

NORTON, J.

This suit was instituted by William S. Gibbs in the Morgan county circuit court. In the petition plaintiff claims that he, as one of the grantors in a certain deed of trust, had the right to redeem certain real estate therein conveyed. This claim is based on the following state of facts: The said Gibbs and one Samuel Wilson were engaged in the mercantile business in Versailles, Morgan county, and being indebted to the defendants, who compose the firm of Samuel C. Davis & Co., in the sum of $3,200, for the purpose of securing the same, on the 14th day of February, 1869, executed a deed of trust, in which one Isaac G. Gibbons was the trustee, and by its terms was invested with the power of selling the land conveyed in case of default in the payment of said debt. The deed of trust embraced both the property of Gibbs & Wilson. On the 4th day of January, 1872, there was a balance of $1,825 due on said note, and on that day the land mentioned in said deed of trust, and also a lot with a house on it in the town of Versailles, were sold for the purpose of paying the said over-due balance, and defendant Sproule, through his agent Simpson, purchased at said sale, said house and lot. This was the property of Gibbs, and is all that is involved in this controversy, other parties having bought the land. Isaac W. Gibbons, the trustee in said deed, and who was the collecting agent of the firm of said Davis & Co., was not present at said sale, but one Simpson, who was also a collecting agent of said firm, conducted the sale through one Painter, who cried the sale, he having been procured by Gibbs at the request of Simpson for that purpose, and who was paid by Simpson through Gibbs for his services. Before the trial of the cause Spurlock was substituted as plaintiff in place of Gibbs, and on the trial of the cause in the circuit court of Cole county, where it had been removed by change of venue, judgment was rendered for plaintiff, from which the defendant has appealed.

1. ASSIGNMENT OF CAUSE OF ACTION PENDING SUIT: proper party plaintiff.

It is insisted on the part of appellant, as one ground of error, that at the time the suit was instituted Gibbs had sold his interest, both legal and equitable, in the property in question to Spurlock, and that the court erred in substituting Spurlock and not dismissing the suit. Upon an examination of the record we find that Gibbs filed his petition in the office of the clerk of the circuit court of Morgan county on the 17th day of August, 1877; the acknowledgment of Gibbs of the deed conveying his interest to Spurlock was made on the 20th day of August, 1877, and on the 21st day of August, 1877, Spurlock attached a notice in writing to said petition to the effect that the house and lot in the petition mentioned had been transferred to him by deed, together with back rents; the writ of summons on said petition was issued on the 28th day of August, 1877. It has been held by this court in the case of Gosline v. Thompson, 61 Mo. 471, that the filing of the petition in a cause is the beginning of the suit. Hence, it follows from the above state of facts that this suit was commenced on the 17th day of August, 1877, the time when the petition was filed, and as the transfer of Gibbs' interest in the property involved in the suit does not appear to have been made to Spurlock before the petition was filed, but on the contrary it does appear that it was made after the suit was brought, the court committed no error either in refusing to dismiss the suit or in permitting Spurlock to be substituted as party plaintiff.

2. DEED OF TRUST: sale in absence of trustee.

It is well settled in this State that a sale of property conveyed by deed of trust under a power contained therein authorizing the trustee to sell in case of default in the payment of the debt secured by it, is not binding on the grantor unless such trustee was present at such sale, or unless in case of sale by another than the trustee the deed empowered such trustee to delegate to another the power to sell. Graham v. King, 50 Mo. 22; Landrum v. Union Bank, 63 Mo. 51. By the terms of the deed of trust in evidence it appears that no one was authorized to sell the property conveyed except the trustee, Gibbons; or in the event of his absence or inability to act, Mr. Davis, one of the beneficiaries, was invested with the power. The evidence shows that neither Davis nor Gibbons was present at the sale, but that it was entirely conducted by one Simpson, agent of defendant, and by him purchased for defendant Sproule. It follows, therefore, from the principle announced in the cases above cited that the sale then made was invalid and did not deprive Gibbs of his right to redeem.

3. ESTOPPEL.

It is, however, insisted that neither Gibbs nor his grantee is entitled to the benefit of this principle; first, because Gibbs was estopped by his conduct and presence at the sale; and, second, because of unreasonable delay in bringing his suit.

Gibbs swears that he first heard that his property was advertised for sale under the deed of trust the day before the sale was to occur; that he lived eighteen miles from Versailles, the place of sale; that on the day of the sale he was present; that he told Simpson he objected to his selling the property because he was not the trustee;...