Stephenson v. January

• Decision Date: 31 March 1872
• Parties: FANNIE B. STEPHENSON et al., Appellants, v. D. A. JANUARY et al., Respondents.
• Court: Missouri Supreme Court

49 Mo. 465

FANNIE B. STEPHENSON et al., Appellants,

v.D. A. JANUARY et al., Respondents.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellants.

Sharp & Broadhead, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This was a bill in equity, brought by Fannie B. Stephenson as the executrix and devisee of the estate of her deceased husband, and certain other parties who claim to be creditors of the estate. The purpose and object of the proceeding was to set aside a deed executed under a sale made by trustees in September, 1861, of Stephenson's estate, at which sale January became the purchaser. Stephenson, to secure an indebtedness which he owed January, executed a deed of trust on the property in controversy, and Joseph C. Cabot and R. G. Lackland were the trustees. Objections are made to the regularity of the sale by the trustees, and it is charged that January knew that Stephenson was insolvent at the time of the sale, and that he either willfully, wickedly and fraudulently intended to cheat and defraud Stephenson and his creditors out of the property, and to obtain the same for a small part of its value, or that he caused the sale to be made in pursuance of an amicable and fraudulent understanding with Stephenson, and for Stephenson's use and benefit, to hold it for him and to assist him in cheating and defrauding his creditors. At the hearing the court dismissed the bill for multifariousness and for want of equity.

In the decision of this case, it is useless and unnecessary to notice the evidence in detail. We have attentively examined the vast record which is now before us, and it will be sufficient to merely notice such points as are deemed most important. It is not denied that the bill is multifarious, but it is contended that, as no advantage was taken of that defect by motion or demurrer, it could not be considered at the hearing and cannot be urged now. Had the court dismissed the bill for that reason only, it might become necessary to consider and decide the point; but as a decree was rendered against the plaintiffs on the ground that they had no merits, and that question is also here, we prefer to decide the case on the record as presented.

There is no foundation for the point raised that at the time the property was advertised for sale it was not shown that the debt was sixty days past due, as provided for in the deed of trust, before any sale could take place. The petition alleged the fact of the maturity of the debt, there was no denial in the answer, and the question was not alluded to upon the trial. The objection that the advertisement was not published according to law and in conformity with the conditions of the deed, we do not think can be sustained. Whether the Legal Record was a newspaper within the proper meaning of the term, or whether it published the notice the required length of time, are immaterial questions; for, in addition to that publication, the notice of sale was inserted in the Missouri Republican, and there is doubt about its being published in that paper sufficiently long.

But it is insisted that there was an inaccuracy in this last publication that destroyed its force and rendered it altogether worthless. The advertisement was in regular form, the names of the trustees were inserted correctly in the body of it, but at the bottom James was printed instead of Joseph in Cabot's name. Certainly, place, description and time are all requisite in the notice of...