Wertz v. Clay

• Decision Date: 17 September 1931
• Citation: 157 Va. 263
• Court: Virginia Supreme Court
• Parties: C. R. WERTZ v. W. B. CLAY AND C. S. MCNULTY, TRUSTEE.

Page 263

157 Va. 263

C. R. WERTZ v. W. B. CLAY AND C. S. MCNULTY, TRUSTEE.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Prentis, C.J., and Holt, Epes and Hudgins, JJ.

1. MORTGAGES AND DEEDS OF TRUST — Trustee's Sale — Sufficiency of Advertisement — Case at Bar. — A trust deed provided that the sale of the property under it should be made only after first advertising the time, place and terms of sale for at least thirty days. The advertisement was inserted in a daily newspaper on May 31st, June 7th, June 14th, June 21st and June 28th, and was likewise published in another daily paper on June 1st, and in each issue of that daily paper up to and including June 29th. Complainant alleged that the advertisement did not conform to the provisions of the deed of trust, as the sale was not advertised in either of the papers for thirty days.

Held: That as it appeared that the grantor had waived compliance with the trust deed's terms as to the advertisements, it was not necessary to decide whether the advertisements complied with the terms of the trust deed. There was manifestly no purpose by the trustee to do less than his duty. Substantially, he did all and more than all that was required of him.

2. MORTGAGES AND DEEDS OF TRUST — Sale — Advertisement — Whether the Advertisement Should be Daily or Weekly. — It is held in many cases that where publication for thirty days is required, it must appear in each issue of the paper selected for thirty days. On the other hand, it is said that daily publication is not necessary unless expressly required and if sufficient in point of time, one insertion a week will suffice.

3. MORTGAGES AND DEEDS OF TRUST — Adjournment of Trustee's Sale — Promise of Grantor to Waive Defects in Procedure in Consideration of Adjournment — Defective Advertisement — Case at Bar. — The instant case was a suit by a grantor in a deed of trust to have a sale under the deed of trust set aside. The grantor relied upon the alleged defective advertisement of the sale. However sufficient or insufficient the advertisement may be, is of small moment, for its insufficiency, if it be insufficient, has been waived. The grantor was anxious to prevent the sale on the date advertised, and with that end in view retained able counsel to represent him. He was desirous of obtaining a delay of ten or fifteen days in order to effect a private sale. His counsel went to the trustee and threatened to enjoin the sale. The trustee naturally thought that some technical objection to the sale had been unearthed, and reached an agreement with counsel of the grantor to postpone the sale. It was three times declared in this agreement that as a part of the consideration therefor the grantor waived every objection of every kind which he then had or might thereafter have to the sale, and said that if the trustee should finally have to sell, he might sell without any objection on the part of the grantor. Manifestly, the sufficiency of the advertisement was in the minds of the parties.

Held: That the grantor intended to waive all defects in procedure, including the advertisements, was too plain for discussion.

4. MORTGAGES AND DEEDS OF TRUST — Sale — Statement of Trustee that He Had Complied with Everything Necessary to Trustee's Sale — Case at Bar. — The instant case was a suit by a grantor in a deed of trust to have a sale under the deed of trust set aside. The grantor relied upon the alleged defective advertisement of the sale. The grantor desiring a postponement of the sale sent his counsel to negotiate with the trustee. The trustee before entering into an agreement whereby the sale was to be postponed and the grantor to waive every objection of every kind which he then had or might thereafter have to the sale, stated that he had complied with everything necessary to the trustee's sale, and the grantor argued from this that the trustee deceived him by saying that the property had been properly advertised.

Held: That the trustee's good faith is to be presumed, and that the trustee might well have believed then, as he contends now, that the advertisement of the sale was sufficient.

5. MORTGAGES AND DEEDS OF TRUST — Sale — Statement of Trustee that He Had Complied with Everything Necessary to Trustee's Sale — Case at Bar. — The instant case was a suit by a grantor in a deed of trust to have a sale under the deed of trust set aside. The grantor relied upon the alleged defective advertisement of the sale. The grantor desiring a postponement of the sale sent his counsel to negotiate with the trustee. The trustee before entering into an agreement whereby the sale was to be postponed and the grantor to waive every objection of every kind which he then had or might thereafter have to the sale, stated that he had complied with everything necessary to the trustee's sale, and the grantor argued from this that the trustee deceived him by saying that the property had been properly advertised.

Held: That the grantor was not dependent upon the trustee as to this matter but upon his counsel. The agreement entered into between the trustee and the grantor's counsel showed that the grantor thought the advertisement was defective and that he waived the defects which he believed existed.

6. TRUSTS AND TRUSTEES — Contract between Cestui Que Trust and Trustee. — It is not true that a cestui que trust can make no contract with his trustee, and particularly is this not true when the beneficiary, who is sui juris, retains to represent him independent counsel that he may secure from the trustee concessions which the trustee did not have to make. When one has employed independent counsel to treat with the trustee, the trust relations are for the time being suspended.

7. MORTGAGES AND DEEDS OF TRUST — Contract between Grantor and Trustee to Postpone Sale in Consideration of a Promise by Grantor to Waive Defects in Procedure and in Event of Private Sale to Compensate Trustee — Case at Bar. — In the instant case a trustee in a deed of trust entered into a contract with the grantor to postpone the sale under the deed of trust. This contract was supported by two considerations. One was a promise to waive defects in procedure, and the other an agreement to pay, in the event of a private sale, a sum which would have equalled the trustee's commission had the property been sold at public auction and had brought the amount of the debt secured. There was no private sale, and if the promise to pay compensation in lieu of commissions was unenforceable, it would not affect the validity of the contract, which would stand as a promise to waive all defects in procedure in consideration of an extension of time to the end that an advantageous private sale under negotiations might possibly be consummated.

8. MORTGAGES AND DEEDS OF TRUST — Postponement of Sale — Readvertisement of Postponed Sale — Case at Bar. — Upon adjournment of a trustee's sale under a deed of trust a reasonable readvertisement of the postponed sale is all that is necessary. In the instant case, after the adjournment of the sale on July 5th to July 16th, notice thereof was published five times in a daily paper. The sufficiency of this readvertisement was testified to by leading lawyers of the city.

Held: That the readvertisement was sufficient and it was not necessary that it should appear each day during the intervening time.

9. MORTGAGES AND DEEDS OF TRUST — Grantee in Deed of Trust as Purchaser for Value — Knowledge by Grantee of Defective Advertisement — Case at Bar. — In the instant case a grantee in a deed of trust purchased the property at the trustee's sale. The grantor contended that the sale was void for lack of sufficient advertisement. The grantee when he purchased knew nothing about the alleged defects in advertisement and so was a purchaser without notice and for value. But it was contended that the trustee was counsel for the grantee and that therefore the grantee was charged with the trustee's knowledge. The trustee testified that he did not represent the grantee. But assuming it to be true, all that could have been known was that the sale had been advertised for a certain date, and that the trustee, upon the earnest insistence of the grantor, had agreed to postpone it to a later date, and that the grantor had threatened an injunction if there was an attempt to sell on the earlier date. He would also have known that the grantor, in consideration of the postponement, had agreed to waive every objection to the postponed sale. Knowledge of all of this could not have affected his status as a purchaser for value without notice.

10. APPEAL AND ERROR — Presumption that Decree is Correct. — The decree of a chancellor is presumed to be right until error is shown.

Appeal from a decree of the Circuit Court of Roanoke county. Decree for defendants. Complainant appeals.

The opinion states the case.

Kime & Kime and Dillard, Moomaw & Dillard, for the appellant.

Volney E. Howard, Hart & Hart, and Woods, Chitwood, Coxe & Rogers, for the appellees.

HOLT, J., delivered the opinion of the court.

This is a suit brought by C. R. Wertz to set aside a sale made by C. S. McNulty, trustee, to W. B. Clay, and to redeem the lands so sold and bought. For four years and through 1,200 pages of a printed record it has dragged its slow length along. Casually considered, the issues appear intricate and difficult; as a matter of fact they are neither:

On May 22, 1917, C. R. Wertz was the owner of three tracts of land in Roanoke county. One contained 123 1/4 acres, another fifty-three acres. These adjoined the corporate limits of Roanoke. The third, a twenty-seven and one-half acre tract, was some distance away. On that day he conveyed all of them to C. S. McNulty, trustee, in trust to secure a first lien of $20,000.00 and a second lien of $20,000.00 plus interest notes on the principal of this indebtedness; all of this principal indebtedness due at three years. The $20,000.00 second...