103 Mo. 31 | Mo. | 1890
This is an action of ejectment commenced by David E. Davis and George C. Heard against the defendant Hess to recover seven hundred acres of land in Benton county. The plaintiff Davis .obtained judgment and defendant appealed.
The defendant Hess, by his deed, dated first of September, 1883, conveyed to Chapman one hundred and sixty acres of the land in suit, in trust to secure four notes amounting, to $2,000, all payable to Scotchbrook. Default having been made, the trustee sold the land on the seventh of March, 1887, and the plaintiff Davis became the purchaser. On the twenty-second of December, 1885, the defendant made another deed conveying the remaining five hundred and forty acres to plaintiff Heard, in trust to secure three notes amounting to about $8,000, payable to plaintiff Davis, and on the fifth of February, 1887, the sheriff of Barton county, acting, as trustee, sold the land to George Davis who conveyed the same to the plaintiff, David E. Davis.
The plaintiff Davis, it will be seen, claims title to all of the land through these deeds of trust and the sales made thereunder. The defense is that the sales were illegal for various reasons, and should be set aside, though there is no offer to redeem. Several questions are made concerning the sale of the five hundred and forty acres
1. The description of the lands in this deed of trust upon the five hundred and forty acres begins with these woyds : “ The south half and the east half of the northeast quarter of section 9,” and, after describing several other parcels in different sections by sectional subdivisions, concludes, ‘ ‘ containing in all five hundred and forty acres.”
The plaintiff contends that the description of the lands in section 9 means the south half of section 9, and the east half of the northeast quarter of section 9, thus conveying four hundred acres; while the defendant insists that the words, south half, as well as east half, refer to the northeast quarter. This construction would, at first, appear to convey two eighty-acre tracts, but it only includes one hundred and twenty acres, for one forty-acre tract is common to both eighties. The rule of law is well settled that the call for quantity may be resorted to for the purpose of making that certain, which otherwise would be uncertain, and especially is this true where the lands are described by sectional subdivisions as in the case in hand. Burnett v. McCluey, 78 Mo. 676 ; Prior v. Scott, 87 Mo. 303; Wolfe v. Dyer, 95 Mo. 545. If we read the description of the lands in section 9 as conveying the south half of section 9, and the east half of the northeast quarter of the same section, we avoid a double description of any part thereof, and the land conveyed will also conform to the call for quantity. That this is the true meaning, and the one which conforms to the intention of the parties to the deed, we have no doubt whatever. In deeds as well as in wills and contracts, we are to determine the intention of the parties thereto, and that is done by taking the instrument as a whole.
2. The deed of trust provides that, in case of the absence of Heard, the trustee, from the county of Benton, or in case of his refusal to act, the sheriff of
The evidence shows that defendant Hess and his wife were present at the sale. She bid something over $6,000, and the land was knocked off to her. She did not pay or offer to pay the purchase price ; nor did the sheriff tender her a deed. After she bid in the land tb,e sheriff asked her what she could do, and she said she did not know ; she then left and did not return to the place of sale, and the sheriff resold the property and Davis became the purchaser at the price of $6,900.
The sheriff in making the sale occupied the position of the trustee, and he was in duty bound to act in good faith as an indifferent person, and adopt all reasonable methods of proceeding in order to make the land bring the most money; but he was not called upon to pursue that course which would compel him to readvertise the property. Had he suffered the bidders to disperse without any proclamation as to when he would resell, it would have been his duty to readvertise. Judge v. Booge, 47 Mo. 545. The sale was a cash one and he had a right to demand payment at the time of the sale. There is no claim here that Mrs. Hess had or could then procure the money had a longer time been given. The only inference which we can draw from the evidence is that she bid, not in good faith, but for the purpose of frustrating the sale. The sheriff appears to have acted as a prudent person would have acted under the existing circumstances, and there is no evidence of oppressive conduct on his part.
Sales under powers contained in mortgages and deeds of trust have always been regarded by this court as a harsh method of cutting off the equity of redemption, and hence it has been held that the utmost fairness must be observed in the execution of such powers. But as said in Waller v. Arnold, 71 Ill. 350, such strictness and literal compliance should not be exacted as will destroy the power. This would render valueless the security intended to be afforded. These parties
That case is quite unlike the one in hand; for here the only building which was or could be called a courthouse was the new one built for courthouse purposes. The sales, wTe conclude, were made at the proper place.
4. We do not see why Heard, the trustee, who refused to act was made a party plaintiff in this case. But under our statute one plaintiff in ejectment may recover the interest to which he is entitled, though a coplaintiff may fail to prove any interest in the premises. R. S. 1879, sec. 2249. The fact, therefore, that Heard did not and was not entitled to recover any interest in the land is no reason why the judgment in favor of Davis should be reversed. It is unnecessary to review the instructions given and refused ; for on the undisputed facts the judgment is for the right paity, and it is affirmed.