German Bank v. Stumpf

73 Mo. 311 | Mo. | 1880

Hough, J.

This was an action of ejectment. The plaintiff claimed title as purchaser at a sale made under a deed of trust executed by the defendant. There was no provision in the deed of trust making tbe recitals in the trustee’s deed evidence 'of the facts stated, except as to notice. The deed of the trustee to the plaintiff was read in evidence, and notwithstanding the recitals as to notice ■therein contained, the plaintiff also introduced the notice of sale and an affidavit of the publishers of the “ St. Louis Daily Jpurnal,” a newspaper printed in the city of St. Louis, that the notice was published in said paper twenty-eight times, the first insertion being on the 22nd day of September, 1876, and the last insertion on the 22nd day of October, 1876, the day before the sale. No publication of the notice was made on Monday, September 25th, Monday, October 9th, and Monday, October 16th. The default of the defendant in the payment of the sum secured by the trust deed was admitted by him at the trial.

1. DEED OP TRUST sale: evidence,

There was testimony that the property was sold by the trustee at the court house “ under the deed of trust,” and in the absence of even a suggestion to the 00 contrary, the jury were warranted in inferring from this testimony that the trustee made the sale in conformity with the requirements of the deed. The defendant introduced no testimony. There was a verdict and judgment for the plaintiff.

2_. semng in mass.

The principal objections relied upon are that the notice was insufficient, and that the property was sold in mass, when it should have been subdivided and sold in lots. The mere fact that property which is susceptible of division, has been sold in mass, will not render a trustee’s sale void. It is only where substantial injury has been inflicted by a failure to subdivide and sell in parcels, that a court of equity will interfere and set the sale aside. Kelly v. Hurt, 61 Mo. 469. If no steps be taken to avoid such a sale, it must, of course, be regarded as valid.

3.-: notice,

In regard to the notice, we are of opinion that the omission to publish it on the three days named, does not render the sale void. But for the statement in the affidavit read,that the notice was published on Monday, October 2nd, which may be a mistake, we would suppose the St. Louis Journal was one of those daily papers, which, in order to avoid the necessity for laboring on Sunday, is not published on Monday. It is unnecessary, however, to make any conjectures upon the subject. When thirty days’ notice is required, thirty days should, of course, intervene between the first publication and the day of sale, and although it may be customary and prudent to continue the notice in ■every issue of the paper from its first insertion to the day of sale, yet it has been expressly decided that “thirty days’ notice in a daily paper ” does not mean thirty days’ daily notice in such paper. White v. Malcolm, 15 Mo. 543. Vide also, Johnson v. Dorsey, 7 Gill 286; Leffler v. Armstrong, 4 Iowa 482. We think, however, that where the notice has not appeared in every issue of the paper from its first insertion to the day of sale, and the omission to make continuous publication thereof is of such a character, or is attended by such circumstances as to mislead the public and work injury to the party whose property is sold, the sale may be set aside. Stine v. Wilkson, 10 Mo. 96. To avoid such a contingency, therefore, in all cases where notice is required to be published in a daily paper, the notice should be published in every issue of such paper from the first insertion up to and including the day of sale. Being satisfied that there is no merit in the defense made in this case, we affirm the judgment with ten per cent damages.

The other judges concur.