Stine v. Wilkson

• Decision Date: 31 March 1846
• Citation: Stine v. Wilkson, 10 Mo. 75 (Mo. 1846)
• Court: Missouri Supreme Court
• Parties: STINE v. WILKSON AND OTHERS.

10 Mo. 75

STINE

v.WILKSON AND OTHERS.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, for Appellant. 1st. That the decree in this case must rest upon the establishment, by the evidence, of the facts charged in the bill as the ground of relief. Story on Eq. Pl. 24; 7 Wheaton. 523. 2nd. That the advertisement of the sale (which is the only part of the proceeding in relation to which the bill makes charges, and upon which evidence was given), is only to be impeached for the causes alleged in the bill, and these are: 1. That it was published in a paper of limited circulation. 2. That it was published but four times. 3. That it did not state that there was a shot-tower on the property to be sold. 4. That there was no hand bills et up. On the first, no evidence of comparative circulation was given. On the second, the publication was sufficient according to the terms of the deed of trust. 13 Ohio R. The third and fourth objections are merely gratuitous additions to the duties of the trustee not warranted by the deed which prescribes his duties, nor by any law that regulates his discharge of such duties. 3rd. The inadequacy of the consideration is not charged in the bill, and if it had been, it would form no ground of relief in a public sale, openly and regularly conducted, by the agent of both parties, and where there is no fraud charged or even attempted to be proved in the conduct of the sale. It is stated in the bill that one Williams, at a sale of the property, bid $2,600, and then refused to take it. And it is also stated that Wilkson, at the same sale of the property of his bankrupt debtor, bid $2,600 for it, but it is not alleged anywhere what was the value of the property. But if the complainants had charged inadequacy of price, this is not a case in which such charge would be of any weight.

GEYER, for Appellees. 1st. The trustee was bound to execute the trust in all its parts in his own person, and was not authorized to commit any part of his duties to Stine, the creditor, or permit him to control the advertisements, or the management of the sale. 2nd. Though a compliance with the letter of the deed of trust, may be sufficient to transfer the estate to a bona fide purchaser, standing in no fiduciary relation to the subject, yet in order to support a sale in equity, where the creditor is the purchaser, it must appear that everything was done, usual in such cases, in order to effect a sale at a fair price. 3rd. A single publication in a newspaper, twenty days before the day appointed for the sale, is not a compliance with the terms of the trust, and a publication of the same notice in some other paper, as in this case, within the twenty days, will not aid. 4th. The publication, first in the “““Gazette,” and afterwards in the “Atlas,” is deceptive; and Stine having undertaken to discharge a material part of the duties of trustee, and afterwards becoming the purchaser, is bound to prove not only that no fraud was intended by him, but that no injury resulted from his acts. 5th. The deed of trust, so called, is in equity a mortgage with trust for sale, and the debtor and his representatives were entitled to redecm at any time before a sale, effected in good faith, should be completed--and in this case, at any time before a deed executed to Stine, he being only entitled to his debt and interest. 6th. The defendant, Stine, after having acted in place of a trustee, could not become the purchaser, so as to preclude the right of redemption, as against McKinder and his creditors. 7th. In a mortgage or trust for sale, the trustee is not only bound to execute the trust in all its parts in person, but is bound to regard in all cases the rights and interest of the debtor, as well as the creditor, and cannot confide the discharge of any part of his duties to either, without a departure from his trust. 8th. It was most material to the right of the debtor and to his creditors, that the notice of sale should be such as to effect an advantageous sale. The creditor having, in this case, taken upon himself that part of the duty of the trustee, and becoming afterwards the purchaser, was bound to prove very clearly that everything was done that could be done for the interest of the other party; or at least that no injury could, or did result to the debtor; having done neither he cannot be allowed to retain the advantage unduly obtained by his interference. 9th. The debtor in this case having reposed his confidence in the trustee, and not in his creditor, it was a violation of his rights to transfer the duties, or any of them, of that trustee to the creditor. 10th. If an advertisement once published twenty days or more before the sale, is a compliance with the letter of the deed, the property was not so described as to show what was to be sold-- the trustee or his substitute ought to have mentioned every part calculated to attract purchasers, to the same extent that a prudent man would in a notice to sell his own property. If the trustee did not, his substitute did know of the existence of the shot-tower on the lot, which gave it its chief value, and his subsequent purchase, under such circumstances, is a suspicious circumstance, which, unexplained, is evidence of a fraudulent design. The proclamation at the sale is no substitute for an advertisement, however often repeated by the auctioneer. 11th. The fact that Stine assumed the duties of the trustee, without the knowledge or consent of the debtor, that he requested a notice of sale to be written, which should allow barely time sufficient, and with a description according to the deed, when he knew and concealed from the trustee the fact of the erection of the shot-tower, a fact not only material as affecting the value, but important in the description--that he selected a paper, in which to publish it, having no circulation in the country--that it was published in that paper only once, and then transferred to a paper in which advertisements are not usually inserted--that in fact, general notice was not given--that the property was of great value--known to Stine, and not made known to the public by the means agreed upon--that it was bid in by Stine, at one-sixtieth of its value, are circumstances which, unexplained, show that the whole proceeding was delusive, and the contriver ought not to be allowed to profit by it. Green v. Winter, 1 Johns. Ch. R. 27; Holdridge v. Gillespie, 2 Johns. Ch. R. 30; Davone v. Fanning, ib. 252; Howell v. Baker, 4 Johns. Ch. R. 118; 1 Powell on Mortgages, 9-13; 3 Powell on Mortgages, 1043-1065; Denning et al. v. Smith et al., 3 Johns. Ch. R. 332.

MCBRIDE, J.

This was a bill in chancery, brought in the Circuit Court of St. Louis county, by the complainants against the defendants and others. In the bill it is alleged that a certain Edward McKinder, being indebted to the defendant, on the 6th September, 1839, executed his note to him for $800, payable six months after date, with interest, at the rate of ten per cent. per annum, subject to two renewals of six months each; and in order to secure the payment of the said note, executed a deed, conveying to Josiah Spalding, in trust for the purpose aforesaid, a lot of ground adjoining the northeast corner of the town of Carondelet, in said county; it being the same lot of ground which was leased to McKinder, for the term of twenty-five years, from and after the 20th November, 1839, in consideration of the annual rent of thirty dollars, subject to renewal at double that rent, by Anthony Wilkson and James C. Evans, and on which was erected a valuable shot-tower, ready for operation.

That on the 20th January, 1840, Edward McKinder assigned to Wm. Robinson and James O'Hara, all of his property of every kind whatsoever, in trust, for the benefit of his creditors, amongst whom are the present complainants. That the property so assigned, embraced among other, the lot of ground on which was erected the shot-tower, adjoining the town of Carondelet, and which had previously been deeded, in trust, to Josiah Spalding.

That on the 8th February, 1840, Robinson and O'Hara, as trustees, advertised the lot in question for sale, and on the 29th of the same month the lot of ground was publicly offered for sale, before the court-house door in the city of St. Louis, and a certain Edward L. K. Williams, being the highest bidder, it was struck off to him, at the sum of $2,600, subject to incumbrances thereon, amounting to between twelve and fifteen hundred dollars. A short time previous to the sale, Robinson, one of the trustees, left the country, and has not since returned--that Williams, the purchaser, refused to accept the individual bond of O'Hara, the remaining trustee, for a title, and also refused to pay the amount which he bid for the said property.

That prior to the falling due of the note executed by McKinder to Stine, O'Hara, the trustee, McKinder and Wilkson were anxious, and each of them offered to renew the same for six months after its maturity, according to the provisions of the deed of trust, but Stine refused to assent to the same. When the note became due, Spalding, the trustee, advertised the lot of ground aforesaid for sale, in the “Evening Gazette,” a paper published in St. Louis, and on the 1st April, 1840, at the court-house door, in said city, exposed the same to sale, when Jacob R. Stine, the defendant, and cestui que trust, being the highest bidder, it was struck off to him at the sum of $106 00. That Wilkson, one of the complainants, was a creditor of McKinder at the time, to the amount of $2,000, and resided in Washington county, about eighty miles from St. Louis, did not see the advertisement of the sale made by Spalding, nor hear anything about it until he came within a mile or two of St. Louis, on the day the sale took place, when he heard to his great astonishment that the property had been sold and sacrificed.

That as soon as he reached the city he...