Benkendorf v. Vincenz

| Mo. | Mar 15, 1873

Sherwood, Judge,

delivered the opinion of the conrt.

This was a suit in the nature of a bill in Chancery, instituted in the Circuit Court of St. Louis County by Anna Benkendorf, against Frederica Yineenz and others, for the purpose of canceling a certain deed of conveyance executed to said Yineenz by one Heritor, as trustee, (under a deed of trust made to the latter in the year 1S59, by Oswald Benkendorf, deceased, former husband of plaintiff.) of lots 5, 6, 7, 8, 9 and 10, of Block 1 of the first sub-division of the City Commons, to secure a loan of $900 (from said Yineenz, to said Benkendorf — ) and also to cancel a conveyance for the same property subsequently made by said Yineenz to Fritchy and wife, who together with the trustee were also made parties defendant to the proceeding.

The petition, as grounds for the relief sought, charges fraud and divers irregularities and abuses in the advertisement and conduct of the sale, which took place in October, 1862, after the death of the grantor, and nearly two years after the maturing of the note. This suit was brought in 1870.

There are many minor exceptions scattered through the record, which are not worthy of specific attention, and consideration will therefore only be given to the two points which constitute the chief basis of complaint, viz :

First, that the “ St. Louis County Legal Becord and Advertiser,” in which was printed the advertisement for the sale of the property under the deed of trust, was not a “ newspaper.”

Second, that the property was sold “in a lump.”

The first point was expressly decided by this court in Kellogg vs. Carrico, FT Mo., 157, in which it was held that the paper referred to was a newspaper ; and from that ruling I see no reason, and feel no inclination to depart.

As to the second point:

While it is.true that sales of this character will be narrowly watched, and every possible safeguard thrown around the interest of him who has been truly called “ a servant to the lender;” yet the mere fact that the property conveyed by deed of trust is sold in gross is not per se sufficient to avoid the sale; and no case that I am aware of has gone to that length. There must be some attendant fraud, unfair dealing, or abuse.by the trustee of the confidence reposed in him ; or some resulting injury from a sale made in this way, in order to obtain the aid of a court of equity to divest a title thus acquired.

In the very nature of things some latitude of discretion ought in this regard to be allowed the trustee, indeed the very instrument conferring the power, contemplates this, and so long as his acts are free from any suspicion of bias, and that discretion is not arbitrarily nor unsoundly exercised, those acts will be exempt from equitable interference.

The evidence in this case, of which thorough examination has been made, by no means discloses anything in support of the charges contained in the petition ; but on the contrary it would seem that the transaction is susceptible of but one construction, that of fairness and good faith, and that the property in question brought all that it was worth, or at least, all that it would liave brought, even if sold “ lot by lot ” in those troublous times — during which the sale referred to took place.

Eor these reasons, the judgment rendered in the court below in favor of the defendants, will, with the concurrence of the other Judges be affirmed.