102 Mo. 575 | Mo. | 1890
— This is a suit to set aside a trustee’s sale of real estate and to redeem.
W. Gr. Fasken being the owner of eighty acres of land near Carthage, in Jasper county, executed to Brinkerhoff a deed of trust thereon, dated the first of November, 1884, to secure a note payable to Weeks for $1,200, due in five years with interest at eight per centum per annum payable annually. Weeks was simply the clerk of Brinkerhoff, and the latter was the real owner of the note as well as trustee. Brinkerhoff assigned the note to Sherwood shortly after its date, but he continued to hold the note as the agent of Sherwood who resided in the state of Maine.
Fasken paid the interest maturing on November 1, 1885. He then procured a loan of $400 from the plaintiff
While the evidence is conflicting, we are satisfied that Brinkerhoff then agreed to give Cassady notice of any default before taking any steps .to foreclose, and that it was this assurance which induced Cassady to take a second lien.
Subsequently and in June, 1886, Fasken sold the eighty acres to Romine, and in the following August Romine agreed to convey the same to the defendant Phelps, free from incumbrances, for the consideration that Phelps conveyed to him a certain other one hundred and sixty acres. To enable Romine to discharge these incumbrances, it was necessary for him to procure a loan of about $2,000 on the Phelps one hundred and sixty acres; and to that end Phelps executed a deed to Romine, and placed the same in the hands of Fishback and Flanigan who were the agents of Romine in procuring the loan. There were delays in perfecting the loan' because of alleged defects in the Phelps title.
Pending these negotiations and on December 4, 1886, Brinkerhoff, as trustee, sold the land because of a default in the payment of taxes and the November interest on the Sherwood note, and the defendant, Wallace, became the purchaser at $1,350. Though Brinkerhoff gave twenty days’ notice of the sale in a weekly newspaper, still .he did not notify Cassady of his intention to sell as he had agreed to do.
There is some evidence tending to show that C assady heard the property was advertised for sale, but we are satisfied he had no such notice. Brinkerhoff, as trustee, commenced the advertisement without being reques ted so to do by Sherwood, but the latter by letter approved what had been done before the day fixed for the sale. Brinkerhoff and defendant Wallace were officers of and employed at the same bank, and they knew that Romine was procuring a loan to pay off the
Romine heard of the sale after and on the day it was made, and immediately commenced a suit to set it aside. In about ten days he perfected the pending negotiations for a loan. With the money thus received he settled the pending suit by paying Wallace $1,850 for a quitclaim deed of the eighty acres to Phelps, and Phelps conveyed the one hundred and sixty acres to Romine. The effect of this transaction, if it must stand, was to cut out the plaintiff’s security, and he thereupon commenced this suit.
It is true Brinkerhoff was trustee and the real owner of the note when the deed of trust and note were executed, but that fact does not render the sale made by him void. His position was that of mortgagee with a power of sale. Whether he could have purchased at his own sale is a question not involved in this case. Nor was the sale void or even voidable solely on the ground that Brinkerhoff advertised the property for sale without a special request from Sherwood so to do ; for he not only held the note for the purpose of collecting the interest, but his act was ratified and approved by Slierwood before the date fixed for the sale. The fact, however, is one to be considered when we come to look into the good faith of the transaction.
A trustee in these deeds of trust to secure debts occupies a position of great trust and confidence. He is the agent of the owner of the property as well as of the owner of the secured debt. It is a personal trust, for he cannot delegate his powers calling for the exercise of judgment and discretion, save when the instrument gives him that authority. Bales v. Perry, 51 Mo.
Now in this case the trustee agreed to give the plaintiff notice before making any sale, and he knew that it was upon this assurance that the plaintiff made the loan and accepted a second deed of trust, and yet he failed to give the plaintiff any notice whatever. Again the trustee and Wallace, the purchaser, knew that Romine was negotiating a loan to pay off both debts and that Romine expected daily to conclude that loan and discharge the debts; yet neither the trustee nor Wallace made any mention of the fact that the property was then advertised for sale. These facts and the other circumstances disclosed in this case lead us to the conclusion that the trustee’s sale was an unfair one : that it was made for speculative purposes on the part of both the trustee and the purchaser, and ought to be set aside.
It may be that, when Wallace purchased the property at the trustee’s sale, he did not know that the trustee had agreed to give the plaintiff notice before selling the property, but it is clear that he had such notice before he paid any part of the purchase price bid at the sale, and he occupies no better position than he would if he had had such notice when he made the bid. The defendant, Phelps, was also conversant with all the facts when he accepted the deed from Wallace. Indeed the evidence shows that when Wallace made the deed to Phelps they agreed, each with the other, to pay one-half of plaintiff’s debt, should the plaintiff be successful in a suit against them. It is clear that they both
The court found the issue in this case for the plaintiff, and entered judgment pursuant to a stipulation as to what the form of the judgment should be, if the court found the issues for the plaintiff. The judgment is affirmed.
