Gray v. Shaw

| Mo. | Mar 15, 1851

Birch, J.,

delivered the opinion of the court.

This was a petition under the new practice act, praying permission to redeem a certain lot of land in the city of St. Louis, and the facts were succinctly and substantially as follows :

By their deed, dated September 26, 1838, M. L. Clark conveyed to certain trustees, therein named, for the purpose of securing to Henry Shaw the payment of certain indebtedness, the lot of land described in the petition. The deed gave the trustees power, in case the debt was not paid, to sell the whole or any part of said lot, or block of land, for the purpose of paying tiie debt, by giving twenty days notice of the time, terms, and place of sale, and property to be sold, by advertisement in some newspaper published in the city. The debt not having been paid, the trustees advertised the lot of land for sale for its payment. The advertisement was dated December 7, and stated that the trustees would “on the 28th day of December next,” proceed to sell, &c. On the day of sale the trustees divided the ground, into lots suitable for family or building purposes, and sold them all, severally, to Shaw, the defendant, he being the highest and best bidder for each of them, and the sale being made at the usual time of day, before the court house door, which was the usual place, and at which there was about the usual number of bidders, and competition, which produced as great an aggregate price for the lot ($4570) as it was then worth;

The trustees having made to Shaw a deed, he went into possession. and has since retained it. The property was, however, levied upon six or seven years afterwards, by virtue of an execution against Clark, the original grantee, and sold by the sheriff to Gray for the sum of fifty dollars, and Gray having conveyed one half of it to Howard for the sum of two hundred and fifty dollars, they commenced this suit to be substituted in the place of Clark, with the right to redeem the land by paying to Shaw his purchase money, interest, &c. The question in the case consequently is, did the trustees sufficiently comply with the terms of the power conferred in the deed to bar the equity of redemption thus set up ?

No difference of opinion exists between this court and the numerous decisions which have been cited from other courts, as to the duty of trustees to keep within the letter of the authority conferred upon them. It may be admitted, further, that had.Clark himself, within a reasonable time after the sale of his property (or equity) by the trustees, brought a. proper bill to set it aside, for the reasons alleged in the petition before us, and had supported his application by testimony shewing that he had thereby been materially wronged or injured, a court of equity would doubtless have listened particularly to his prayer and his proofs, and possibly have granted him the relief he sought. Similar considerations would have been due to a bona fide creditor, seeking to avail himself of the alleged equities of his debtor, but neither in morals nor in law does the case before us appear to occupy any such footing or relation.

Here there is not the slightest testimony that any person suffered injury, and the sentence complained of in the advertisement is divested of all ambiguity, by but legitimately bringing to its construction the invariable usage of the country in respect to such publications, for that usage or custom would alone irresistibly suggest and supply the grama-tical ellipsis, as it was suggested, and was supplied by those who read the advertisement, and who accordingly attended the sale Clon the 28th day of December next, ensuing.” No other construction could be given to the advertisement, with reference either to the invariable custom alluded to, of foregoing the trouble and 'expense of publishing such notices until about the last permissible moment in which it could be done, pr the absolute illegality of the notice, if it was intended to advertise a sale of property, not twenty days, but a year and twenty days beforehand !

The construction, then, which the plaintiff here insists may have misled the public, but which he introduces not even one of that public to prove did mislead him, would have to be arrived at no less in repugnance to a custom as familiar, as uniform, and as unvarying as any other known to the country, than to the clear legal duty of the trustees, as to the time of making such publications. We need scarcely add, that such assumptions or pretences are altogether too strained, improbable and technical, to justify a court in overruling at this day what turned out to be a good bargain for the party who took the risk, and paid his money eight years ago, merely to permit a long subsequent speculator, ■without equity and without hazard, to come in upon a small adventure, and possess himself of an estate which has appreciated into a probable large fortune, under the care and management of another who had long previously paid and satisfied its owner so full and fair a value that he has never deigned to complain.

As to the manner of selling out the block, we think the trustees acted with proper fairness and discretion, if, indeed, they could have adopted any other method that would not have subjected them to legitimate criticism.

By a fair construction of the terms of their trust, they were to sell the whole of the property, or such a part of it as might be necessary to pay the debt of Shaw. It matters not that under the plan adopted the whole of it did not pay that debt, and that Shaw has never received anything in addition, inasmuch as the testimony is explicit that under the plan as adopted the trustees realized for the property its full aggregate value. Independent even of all testimony upon the subject, the whole system of dividing land into lots, and in that manner selling them out for building purposes, would have predisposed us to commend instead of condemn the action of the trustees, in addition to these considerations, it was in fair and strict accordance with the spirit of their authority, that if ten or twelve lots, out of the fourteen into which they divided the block, would produce money enough to satisfy the debt for which it was deeded, they should stop at that number, as they doubtless would have done.

We but repeat, therefore, the entire approbation with which we regard the action of the commissioners in this respect; and that, therefore, upon the whole case, the judgment of the circuit court should be, as it is, affirmed.