White v. Stephens

• Decision Date: 30 April 1883
• Citation: 77 Mo. 452
• Parties: WHITE, Plaintiff in Error, v. STEPHENS.
• Court: Missouri Supreme Court

77 Mo. 452

WHITE, Plaintiff in Error,

v.STEPHENS.

Supreme Court of Missouri.

April Term, 1883.

Error to Marion Circuit Court.--HON. JOHN T. REDD, Judge.

REVERSED.

Edward McCabe and Thos. L. Anderson for plaintiff in error.

W. M. Boulware for defendant in error.

HOUGH, C. J.

This is an action of ejectment. The plaintiff claims title as purchaser at a sale under two trust deeds, executed by one John Stephens and the defendant Mary A. Stephens, his wife, each of which deeds covered the premises in controversy, and provided that in case of the absence, death, refusal to act, or disability in anywise of the trustee named therein, the then acting sheriff of Marion county should, at the request of the legal holder of the note secured by said deed, proceed to sell the property at public vendue, to the highest bidder, and upon such sale should execute and deliver a deed in fee simple of the property sold to the purchaser. Each of said deeds also contained the provision that “any statement of facts or recital by the said trustee in relation to the non-payment of the money secured to be paid, the advertisement, sale, receipt of the money and the execution of the deed to the purchaser, shall be received as prima facie evidence of such fact.” John Stephens died in possession of the premises sued for. More than nine months after his death, the contingency provided for in each of said deeds, upon which the sheriff was to act, having arisen, the sheriff made sale of the property and conveyed the same to the plaintiff, who was the purchaser at said sale. The recitals in the sheriff's deed show conformity to the requirements of the trust deed as to notice, time, place and manner of sale.

The circuit court held that the death of Stephens revoked the power of the sheriff to sell, and also ruled that the recital by the sheriff in his deed of the notice of sale and the publication thereof was not prima facie evidence of such facts, and thereupon rendered judgment for the defendant.

It is conceded by the defendant's counsel that when a power is coupled with an interest and united in the same person, as in the case of a mortgage with power of sale, the death of the grantor will not work a revocation of the power. Beatie v. Butler, 21 Mo. 313. It is also conceded that in the case of trust deeds like those before us, the sheriff may sell, and his conveyance will pass the title, although the legal title was vested in the trustee, and that the power conferred upon the sheriff by the deed is irrevocable by the...