Stewart v. Brown

• Decision Date: 14 November 1892
• Citation: 20 S.W. 451,112 Mo. 171
• Parties: Stewart et al., Appellants, v. Brown et al
• Court: Missouri Supreme Court

20 S.W. 451

112 Mo. 171

Stewart et al., Appellants, v. Brown et al

Supreme Court of Missouri

November 14, 1892

Appeal from Buchanan Circuit Court.

Reversed and remanded.

S. S Brown for appellants.

(1) The sale by the trustee was void. The power under which he acted required the sale to be made at the east door of the courthouse. It was not sold at that place nor at the east door of any building at which court was being held at the time. "A power of sale, like all other powers, can be exercised only in the mode and upon the exact conditions terms and occasions prescribed in the instrument of trust. 2 Perry on Trusts, sec. 783. The place provided for the sale in the deed of trust was one in which all the courts of the county were held. This was abandoned, and two buildings at a distance from each other were provided for holding courts. The advertisement stated that the sale would be held at the front door of the courthouse. There was nothing in this to indicate at which house the sale was to be made. Goff v Roberts, 72 Mo. 570. (2) The twenty-second day of February is made by statute a public holiday. Revised Statutes, 1889, sec. 737. And no writ of any court could be served on that day. Sec. 8952. No judicial act can be performed on that day. Lampe v. Manning, 38 Wis. 673. (3) The question in this case is not necessarily whether the sale was void or not. If the time, place or circumstances under which it was advertised to take place were such as to excite doubt in the mind of the ordinary bidder as to the title which would result, the trustee committed a breach of his duty, and, if either of the parties were injured thereby, the sale ought to be set aside, and the mortgagor permitted to redeem.

M. A. Reed and Lancaster, Hall & Pike for respondents.

(1) The sale was properly made at the place where it occurred. Hambright v. Brockman, 59 Mo. 56; Napton v. Hurt, 70 Mo. 497; 2 Jones on Mortgages, secs. 1848, 1849; Alden v. Goldie, 82 Ill. 581; Wilhelm v. Schmidt, 84 Ill. 183; Williams v. Powers, 48 Tex. 141. (2) The sale was not rendered illegal because it occurred on the twenty-second of February. The laws of Missouri do not place holidays on the same footing as Sundays. Revised Statutes, 1879, secs. 551, 1054, 1578. The Missouri statute stops all business on Sundays. It does not stop any business on any other day. These views are fully sustained by the following cases: Richardson v. Goddard, 23 How. 28; Ass'n v. Miller, 2 S.W. 900; 2 Jones on Mortgages, sec. 1847; Sayles v. Smith, 12 Wend. 57; Westgate v. Handlin, 7 How. Pr. 372; Russ v. Gilbert, 19 Fla. 54; Dunlap v. State, 9 Tex.App. 35; Pender v. State, 12 Tex.App. 496; McVerry v. Boyd, 57 Cal. 406; Bear v. Youngman, 19 Mo.App. 41.

Thomas J. Black, J., concurring. Gantt, J., concurs with Black. Sherwood, C. J., concurring. Macfarlane, J., concurs in this opinion. Barclay, J., concurring. Judge Brace uniting in this opinion.

OPINION

In Banc.

Thomas, J.

Black, J., in division number 1, made the following statement which we adopt as correct:

"This case is before us to review the action of the circuit court in sustaining a demurrer to the petition.

"On the twenty-eighth of May, 1883, George B. Stewart conveyed four lots to a trustee to secure his note for $ 1,600 payable to John C. Brown in one year after the date thereof. Stewart died in April, 1885, and the trustee sold the property on the twenty-second day of February, 1886, and Brown became the purchaser at the price of $ 1,985.

"This is a suit by the heirs of Stewart, some of whom are minors, to redeem the property.

"According to the petition the deed of trust provided that, if Stewart should fail to pay the note at maturity, 'the trustee, at the request of the legal holder of said note, should proceed to sell said property, or any part thereof, at public vendue to the highest bidder, at the east courthouse door in the city of St. Joseph, Buchanan county, Missouri, 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 county of Buchanan.'

"At the date of the deed of trust the courthouse was situated where it stood when this suit was commenced in 1887, namely, between Fourth and Fifth streets north of Jule street, and the east door fronted on Fifth street. In April, 1885, the courthouse was partially destroyed by fire, and at the date of the trustee's sale the circuit court was held on the third floor of a building situate on the northwest corner of Sixth and Francis streets, and the county and probate courts were held in a building situate on the northeast corner of Second and St. Charles streets. These buildings were not near to each other, nor were they near to the partially destroyed courthouse. It does not appear where the various county officers had their offices.

"The trustee gave notice that he would sell the property 'at the front door of the courthouse in the city of St. Joseph,' and he sold the same 'at the front or north door that led upstairs to the part of the building occupied by the circuit court, when in session, on the corner of Sixth and St. Francis streets.' The circuit court was not in session on the day of sale. It is alleged that persons who would have bid for the property, had it been sold at the proper time and place, refused to attend the sale because of the doubt entertained of its legality, and that the property sold for less than half of its value."

I. Black, J., in an opinion filed by him in division number 1, said: "The place where these sales under deeds of trust given to secure debts must be made depends upon the terms of the deed of trust. Such sales may be made at any place agreed upon by the parties; nor is it necessary that they should be made during the session of a court, as is the case in sales under executions. The place of sale, like the power of sale itself, is a matter of contract, and it follows that in determining the place of sale we must look to the intention of the parties as expressed in the deed of trust. It is to the intention thus expressed that the purchaser must look; for the trustee has no right to deviate from the expressed terms of sale, and if he fails to make the sale at the designated place it will not cut off the equity of redemption."

This is conceded to be the law, and, hence, the only question for us to decide is what contract the parties made as to the place of sale of the property under the deed of trust. Plaintiffs contend that by designating a particular door of the courthouse the parties intended that the sale should take place at that particular door of the then existing courthouse; while on the other hand defendants claim that the parties intended that the sale should take place at the door of the courthouse that would be in existence at the time of the sale.

In Kane v. McCown, 55 Mo. 181, it was held by this court that, when in consequence of the fact, that a circuit courthouse was occupied by United States troops, a neighboring church at the same county seat was used as a courthouse, a judicial sale at the latter place would not be thereby rendered void, and that the obvious meaning of the execution law is to require judicial sales to be made at the door of the building occupied and used as a courthouse. In Hambright v. Brockman, 59 Mo. 52, it was held that the terms of the deed of trust, calling for a sale "at the courthouse door," were sufficiently complied with when the property was sold at the door of the building appropriated by special order of the county court for court purposes, pending repairs in the courthouse proper. In Napton v. Hurt, 70 Mo. 497, it appeared that the deed of trust called for a sale at the west door of the courthouse, but after the execution of the deed of trust a courthouse having no west door was located at another point, and this court ruled that the trustee could rightfully make the sale at the door of the new courthouse, basing the decision on the principle announced in Hambright v. Brockman, supra.

We do not deem ourselves called upon to examine the reasons on which that decision rests. It was announced in 1879, and has become a rule of property in this state, and to subvert it now would unsettle many titles, in all probability, and do incalculable mischief, and "it is a sacred duty in a court to adhere to decisions which have become a rule of property, unless there are the most convincing and overwhelming reasons for overruling them." Wells on Res Adjudicata & Stare Decisis, sec. 594; Reed v. Ownby, 44 Mo. 204. "But there are some questions," says the supreme court of Indiana in Rockhill v. Nelson, 24 Ind. 422, "in the law, the final settlement of which is vastly more important than how they are settled; and among these are rules of property, long recognized and acted upon, and under which rights have vested. * * * We cannot change a decision without producing confusion in titles, as the ruling would necessarily relate back to the time the law came in force."

The deed of trust in the case at bar was executed in 1883, and it is to be construed as if it contained the proviso that, in case the then courthouse should be abandoned as a courthouse or destroyed, the sale by the trustee might be made at the door of the courthouse existing at the time of the sale, for that was the law at that time, as construed by this court, and the parties must be held to have contracted with full knowledge of it. We concede that it is the duty of the court to overrule a former decision in a proper case but, "unless the evil to be apprehended from adhering to a decision or a series of decisions, is manifestly greater than that which might proceed from a departure, no change...