City of St. Louis v. Priest

88 Mo. 612 | Mo. | 1886

Nouton, J.

The city of St. Louis, in 1859, was the owner in fee of certain real estate described in the three ■counts of the petition 1iled in this case, and in October ■of said year sold and conveyed said, real estate to defendants. Defendants to secure the payment of the purchase monejq executed a deed of trust conveying said real estate to one Hoyt, then comptroller of the city of St. Louis, and authorizing either him to sell and convey the property for the payment of the purchase money il default should be made in its payment, or any successor of his in office, who may be acting comptroller of the ■city of St. Louis at the time default in payment be made.

It appears that in 1864 Hoyt, the trustee, executed a power of attorney to George K. Budd, in which, after stating that default in payment of the notes secured by the deed had been made, it is recited that by reason of his absence from the city he could not execute the trust,. Authorized and empowered, said Rudd to execute it for him. It further appears that in 1865-said Budd, in pursuance of this delegated power, advertised the property for sale, at which sale the city became the purchaser and. received a deed therefor, in which it is recited that: “ Stephen Hoyt, formerly comptroller of the city of St. Louis, now of the city and parish of New Orleans, state of Louisiana, by his attorney, George K. Budd, * * * is the party of the first part.” This deed is signed “ Stephen G. Hoyt, by his attorney in fact, George K. Budd,” and is acknowledged by said Budd.

Plaintiff’s petition is based on the above state of facts and asks the court to divest defendants of title to the property thus sold and put it in the plaintiff. The trial court dismissed the bill and rendered judgment accordingly, and it is this judgment we> are asked to reverse on plaintiff’s appeal.

It is established'law in this state that a trustee in a deed of trust cannot' delegate the trust or power of sale to a third person unless expressly authorized to do so by the deed, and a sale made by such delegated agent is void. Spurlock v. Sproule, 72 Mo. 503; Graham v. King, 50 Mo. 22; Landrum v. Bank, 63 Mo. 51. The sale in this case having been made by Budd,as the agent of Hoyt, is void, and the deed based on such sale is likewise void.

It is also well' settled that equity will not afford relief against a mere mistake of law. 1 Story Eq., secs. 111-15; Hendricks v. Wright, 50 Mo. 315; Hunt v. Rousmanier’s adm'r, 1 Peters, 15, in the present case the mistake made in the sale of the property was one of law unmixed with any mistake of fact, and giving effect to the principle of law above, stated, the judgment of the circuit court in dismissing plaintiff’s bill is affirmed.

All concur.