West v. Axtell

• Citation: 17 S.W.2d 328,322 Mo. 401
• Parties: Almira West, Appellant, v. H. W. Axtell et al
• Decision Date: 29 March 1929
• Court: Missouri Supreme Court

17 S.W.2d 328

322 Mo. 401

Almira West, Appellant, v. H. W. Axtell et al

Supreme Court of Missouri

March 29, 1929

Appeal from Douglas Circuit Court; Hon. Fred Stewart Judge.

Reversed and remanded (with directions).

Joseph V. Pitts for appellant.

(1) The court erred in refusing instructions numbered 1, 2, and 3 offered by appellants. Trustees are entrusted with the important function of transferring one man's property to another, and therefore both reason and justice will exact of them the most scrupulous fidelity. Courts of equity have always watched their proceedings with jealous and a scrutinizing eye, and where it is clearly shown that they have abused their trust, or combined with one party to the detriment of another, relief will be granted. (a) Where it appears that substantial injury has resulted from their action, where, in pursuance of their powers they have failed and neglected to exercise a wise and sound discretion, equity will interfere. Hanson v. Neal, 215 Mo. 275. (b) At the instance of J. E. Hart, the trustee made the sale, in the absence of attorney for appellant and without the refusal to act by trustee named in the deed of trust and without the note or deed of trust, at an unusual hour, after the sales were publicly announced over, at a grossly inadequate price and under a bogus proof of publication. Chesley v Chesley, 49 Mo. 540; Loungemere v. Busby, 56 Mo. 540; Tatum v. Holliday, 59 Mo. 422; Axman v. Smith, 156 Mo. 286; Givens v. McCray, 196 Mo. 306; 27 Cyc. 1477; Polliham v. Reveley, 181 Mo. 623; Vail v. Jacobs, 62 Mo. 133; Guels v. Stark, 264 S.W. 693. (2) "A trustee must postpone a sale, if necessary to prevent a sacrifice." Graham v. King, 50 Mo. 22. (3) If it appears that going on with the sale at the appointed time will result in great sacrifice of the property, it is his positive duty to adjourn the same, and if he fails to do so he takes the risk of having the sale vacated. 27 Cyc. 1475; Speer v. Home Bank, 200 Mo.App. 269; Middleton v. Baker, 262 Mo. 398. (4) The court erred in sustaining the sale, because said sale was made at an unusual hour. Stephenson v. Kilpatrick, 166 Mo. 262. The trustee is not the mere agent for the mortgagee, but is trustee for both debtor and creditor, and must be fair, impartial and use all reasonable efforts and methods to make the property bring as much as possible. Under the facts the sale was invalid and the trustee's deed should be set aside. Lunsford v. Davis, 300 Mo. 508; Whelan v. Reilley, 61 Mo. 565; Stoffel v. Schroeder, 62 Mo. 147; Vail v. Jacobs, 62 Mo. 130; Holdsworth v. Shannon, 113 Mo. 508; Daggett Hdw. Co. v. Brownlee, 186 Mo. 621; Hanson v. Neal, 215 Mo. 256; Montgomery v. Miller, 131 Mo. 595. (5) Surprise, coupled with inadequacy of price, justified setting aside the sale. Holdsworth v. Shannon, 113 Mo. 523. (6) A mistake as to the time of sale of lands advertised for sale under a deed of trust, coupled with great inadequacy of price, etc., is sufficient basis for setting aside the sale and ordering another sale. Middleton v. Baker, 262 Mo. 398; Hanson v. Neal, 215 Mo. 256.

J. S. Clarke for respondent Cecil H. Hart.

(1) There is absolutely no fraud or intimation of unfairness in the sale of this land. The whole trouble is, that Mr. Pitts overlooked the date of sale, and on account of his oversight, and the record he kept of this sale, showing a later date, the land was sold in his absence, and he now seeks to cancel this trustee's deed on account of his own carelessness, and at the expense of this purchaser. (2) The land was sold under and by virtue of Sec. 2234, R. S. 1919, and sale should be sustained. (3) The poverty of grantor in the deed of trust is no ground for setting aside a trustee's sale, even if it should be held that the property was sold for much less than its worth. Lipscomb v. Ins. Co., 138 Mo. 17; Dunn v. McCoy, 150 Mo. 548; Markwell v. Markwell, 157 Mo. 328. (4) A sale of lands upon proper notice and at the usual hour for such sales, will not be set aside. New York Co. v. Thurmond, 186 Mo. 410. (5) The notice published and verified is all the law requires, as provided by Sec. 2236, R. S. 1919. (6) The trustee was under no obligation to notify, in person, the mortgagee, or her attorney, in order to make this trustee's sale lawful. Hardwick v. Hamilton, 121 Mo. 465; Harlin v. Nation, 126 Mo. 97; Jopling v. Walton, 138 Mo. 485. (7) The point raised by appellant as to the verification of the proof of the notice of sale, published in the Douglas County Herald has no merit, and should have nothing to do with final determination of this suit. It had been the custom of the Herald office to use these forms for years, and this interpleader knew nothing of this method of verifying this proof, the same being regular upon its face. The purchaser at trustee's sales is not required, before being protected in his bid, to examine the party making these proofs to find if they were really sworn to, and on the day there shown, etc. Neither was it the duty of the purchaser at this sale, to make inquiry of the mortgagor, or her attorney, as to whether they wanted to be present at the sale, in order to be protected in his bid and purchase of the lands, and to invite them to not neglect their duty in this respect.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Plaintiff commenced this action in the Circuit Court of Douglas County on October 1, 1925, to foreclose a certain deed of trust, dated November 15, 1922, and executed by H. W. Axtell and Lilly Axtell, husband and wife, conveying to Nat West, trustee, eithty-five acres of land, specifically described, situate in Douglas County, Missouri, in trust to secure the payment of grantors' certain promissory note for the principal sum of $ 1,000, dated November 15, 1922, and payable five years after date, to the order of plaintiff, Almira West, with interest at the rate of six per cent per annum from date until paid, payable annually, and, if the interest be not paid annually when due, then same shall become a part of the principal and bear the same rate of interest. The said deed of trust contained the usual condition that, "should the said first parties (H. W. Axtell and Lilly Axtell) fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date and effect of said note, then the whole shall become due and payable, and this deed shall remain in full force; and the said party of the second part (Nat West, trustee), or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of Douglas County, Missouri, at the request of the legal holder of the said note, may proceed to exercise the powers of sale and sell the property hereinbefore described, or any part thereof, at public vendue to the highest bidder, at the courthouse door, in the County of Douglas, State of Missouri, for cash, first having given -- legal days notice of the time and terms of sale and place of sale and the property to be sold by advertisement in some newspaper printed and published in the County of Douglas, and upon such sale shall deliver deed in fee simple of the property sold to the purchaser or purchasers thereof, and receive the proceeds of the sale; and any statement or recital by said trustee in relation to non-payment of the money secured to be paid, the advertisement, sale and receipt of money and the execution of the deed to the purchaser, shall be received as prima-facie evidence of such facts."

The petition is in conventional form, alleging the execution and delivery of said deed of trust, and of the promissory note described therein and secured thereby, to the plaintiff, Almira West; that the principal, and the interest thereon since November 15, 1923, is due and unpaid according to the terms of said note and deed of trust; that the trustee, Nat West, named in said deed of trust, has refused to act; wherefore, plaintiff prays for judgment on said note and that the equity of redemption in the described lands be foreclosed, and for such further orders and decree in the premises as to the court may seem proper. The original note and deed of trust are attached to the petition as exhibits.

The defendant W. A. Clinkingbeard answered as follows: "Comes now defendant W. A. Clinkingbeard, and for his separate answer to plaintiff's petition says that he is now, and was at the time herein mentioned, sheriff of Douglas County, Missouri, and that pursuant to a notice duly published he sold the lands in plaintiff's petition described the 25th day of September, 1925, at the courthouse door, as provided in said notice, in Ava, the countyseat of Douglas County, Missouri, to the highest bidder for cash, and that Cecil A. Hart purchased said lands for the sum of $ 280, and that, as acting trustee, he executed and delivered to said Cecil A. Hart, a trustee's deed to said lands; that said notice of sale was prepared and placed in the hands of the publisher by Jos. V. Pitts, attorney for plaintiff herein; that said Cecil A. Hart paid him the said $ 280, which he tendered to the said Jos. V. Pitts, which said attorney refused to accept, and defendant hereby tenders into court the said purchase money for said lands. Defendant denies that he refused to act as trustee and sell said lands; but says he did sell the same as herein alleged; but says he did refuse to advertise and sell said lands a second time.

"Defendant denies each and every other allegation contained in plaintiff's petition.

"Wherefore, defendant asks to be discharged with the costs taxed against the plaintiff."

Cecil A. Hart was allowed to interplead, as a party defendant, and answered as follows:

"C...