White v. Watkins

• Decision Date: 31 October 1856
• Parties: WHITE, Appellant, v. WATKINS & DAVIS, Respondents.
• Court: Missouri Supreme Court

23 Mo. 423

WHITE, Appellant,

v.WATKINS & DAVIS, Respondents.

Supreme Court of Missouri.

October Term, 1856.

1. A written advertisement or notice of a trustee's sale, signed by the trustee, is not a sufficient note or memorandum within the statute of frauds.

2. In order that an entry of a sale made by an auctioneer may satisfy the requirements of the statute of frauds, it must be made at the time of the sale; an entry made a month or more after the sale is not sufficient.

3. In order that a delivery of possession to a vendee of land may amount to such a part performance as to take the case out of the statute of frauds, the situation of the parties must be such as that a refusal to carry out the parol contract of sale will work a fraud upon the purchaser.

4. A grantor in a deed of trust, who is also residuary cestui que trust, is a necessary party to a suit brought by a purchaser at the trustee's sale for a specific performance of the contract of sale.

5. Where trustees are empowered by a deed of trust to act separately, yet, if they elect to act jointly, as by giving a joint notice of sale, one can not act alone.

Appeal from Mississippi Circuit Court.

This was a suit brought by Robert White for the specific performance of a contract for the sale of land. Plaintiff claimed as purchaser at a sale made by defendants, Watkins and Davis, as trustees, under a deed from one Bullock. The facts sufficiently appear from the finding of the court, which is as follows: “The court finds from the allegations of the parties and the proof adduced herein, that the defendants, by virtue of a deed of trust, executed to them by Edmund J. Bullock, in November, 1852, in Charleston, in Mississippi county, Mo., offered the lands mentioned in plaintiff's petition for public sale, and at said sale the plaintiff bid the sum of $1200.25 for said land, and that, being the highest bidder for said land, the same was struck off to him for that sum. The said lands were offered at said sale to the highest bidder for ready money, such being the terms upon which the defendants had previously given notice by written bills, set up at public places in said county. At said sale the defendant Watkins agreed with the plaintiff that if the plaintiff would make a note, payable at the branch bank of the Bank of Missouri at Jackson, which Albert Brevard might think would be discounted at the first meeting of the directors of the bank, he would take such note for the purchase money of such land. The plaintiff did make a note payable at said branch bank, which said Brevard thought would be discounted by said directors; and that said Watkins, on the day of the sale, had notice of that fact. Said Brevard was president of said branch bank at the time of said sale, and took said note into his possession by the consent of the plaintiff and the said Watkins. At the time the said note was signed by said White, and the indorsement made thereon, there were blanks upon the face of said note. The clerk of said branch bank, or some other officer of said bank, filled up those blanks, and made said note payable at the Branch Bank of the State of Missouri at Cape Girardeau. The board of directors did not meet on the first Saturday next succeeding the said sale. Said directors did meet about two weeks afterwards. Said note was not presented to said board of directors for discount. Before said directors met, said Watkins told said Brevard that said note need not be discounted for his benefit; that he would not receive the proceeds because the said money had not been paid according to contract, of which fact the plaintiff, within two or three days afterwards, had notice. After said sale, the plaintiff, by direction of the said Watkins, took possession of said land by his agent. His agent remained in possession about two weeks, and then left said possession, and plaintiff has not had possession of said land since that time. More than one month after the said sale, Mills indorsed in writing on one of said notices of sale, given by said defendants as aforesaid, that said plaintiff was the purchaser of said land at said sale, and also the price for which said land was sold, which indorsement was signed by said Mills. The said defendants, or either of them, never gave the said Mills any instructions to make said indorsement.

“In the fall of the year 1853 and before the commencement of this suit, the plaintiff tendered to the defendants the purchase money for said land, and what interest was due on the same up to the time of such tender, and the defendants refused to accept the same. As a conclusion of law upon these facts found as aforesaid, the court declared that the plaintiff ought not to recover in this suit.”

T. Polk, Glover & Richardson, for appellant.

I. The auctioneer, the sheriff Mills, who made the sale, was, for the purposes of the sale, the agent of both the parties, particularly of the vendors, the defendants. (Sug. on Vendors, 122, 124.) Advertisement that lands are to be sold at public auction, with the terms of sale, is a sufficient memorandum in writing to hold the vendor. (Kirby's Rep. 14.)

II. Sheriff Mills, being the agent of the respondents, and authorized by them in writing--that is, by Davis by letter, which was assented to by Watkins by his conduct at the sale--had authority to make a written memorandum of the sale, of the name of the purchaser, the amount of the purchase money bid, &c. and he had authority to do so, whether the defendant expressly so stated to him or not; and this memorandum in writing was not required to be made at the moment of the sale, but might be made at any reasonable time thereafter.

III. The delivery of the possession of the land sold to the appellant by the respondent takes the case out of the statute of frauds. (Sug. on Vendors, 135-6.) For the purposes of this case, we say that the plaintiff stands before the court exactly as if he had fully paid the purchase money. The plaintiff had done all that he could do, and the defendants had refused to take the proceeds of the note when discounted. This is equivalent to performance for the purpose of maintaining this action. (Pond v. Wyman, 15 Mo. 175.) In this case, therefore, we have what is equivalent to performance; that is, payment of the purchase money by the plaintiff, and a delivery of possession of the premises to him by the defendants.

E. Bates, for respondent.

Specific performance is strictly equitable. It lies in the discretion of the court, and is never granted unless where the contract, being fully and fairly stated, is seen to be, on a proper consideration, reasonable and just in itself, and mutual between the parties, and all the parties in interest are made parties to the suit, so that a decree may be rendered with perfect justice to all concerned. (8 Mo. 374; McMurtrie v. Barnette, Harr. Ch. 124; Lewis v. Woods, 4 How., Miss., 86; May v. Fenton, 7 J. J. Marshall, 306.)

II. The finding negatives the contract alleged in the petition, by showing that the sale was for cash and not for a note; by showing that the defendants did not agree to receive a note in payment instead of cash; by showing that in fact no note was received by the defendants in payment for the land; by showing that the defendants acted as trustees of Bullock, and consequently could not depart from the terms of the deed of trust, which required a cash sale; by showing that Bullock is a party in interest, and ought to be a party to the suit; and by showing that the case is not only destitute of all equity for...