*1 1154 may injuring pressed pretext hard he a
when have his assailant.” testimony L. of defendant on which R. C. his self [2 549.] reasonably, were though defense instructions based neces- showing sarily, beginning from construed as he was the end aggressor plaintiff. with his encounter There must have been something menacing in his approached attitude manner he plaintiff hand, thing whip plaintiff with stock in for the first his immediately I “You done?” He answered, was “What have said got . . stop . plenty this has I don’t mean have done maybe.” immediately wrench Plaintiff reached for a and defendant cultivator) you “got (the him. off struck Then so fast run.” know it was done and started to Defendant’s wouldn’t how threatening was, if as he toward attitude, such it came used, hand, language with the he his connection weapon might reasonably justifying plaintiff reaching for be considered as words, necessity wrench, did. if the for defend- he creation, ing operate himself was of defendant’s own it did not him. behalf should The self defense instructions excuse 312; accordingly. Barlow, Ky. 131 qualified v. been [Renfro 169 McClellan, Ala. Morris 90.] only damages, plaintiff’s petition prayed compensatory
3. As question damages case. punitive no Instruction there was confusing given, misleading. 5 it not have been of the circuit court is reversed errors noted For the All concur. the cause remanded. the estate of Erasmus C. Administrator of McGinnis, Guels, Walter Margaret Company Mississippi Valley Trust Appellant, v. will of Charles B. Co-executors under Stark, Stark, Margaret Valley Trustee, and Mississippi Company, Trust Beneficiary. (2d) S. W. 60. One, April 1932. Division *2 Hugh Wagner Nagel K. appellant; Kirby Paul <& and Everett of counsel. Griffin *3 A. respondents.
Charles Routs for STURGIS, C. This is the appearance second of this case in this court, having been appealed time first because of the trial court having sustained demurrer petition, reported to the and is as Guels Stark, S. W. 693. Having been and remanded, reversed case was on petition, tried good which we held stated cause of original action. plaintiff, McGinnis, Erasmus died while the case pending here appeal by stipulation was re- Guels, vived this court in the name of C. "Walter Administrator. retried, Before the case was defendant, Stark, Charles B. also died ease and the Avas revived in the circuit name of Mississippi Valley Company Margaret Stark, Co-trustees, Trust Beneficiary Margaret Stark’s words, will. present plaintiff place -the takes successor in title of the origi- nal plaintiff, McGinnis, present Erasmus and the defendants are the original defendant, successors in title of the B. Charles Stark. essentially yet case is they that of v. Stark will re- McGinnis be respectively. ferred to as and defendant As appeal case, said on the former plaintiff, peti- of this tion, accounting for an “asks to ascertain the balance due from him defendant; permitted pay that he in cash defendant ascertained; amount required thereupon, and that defendant simultaneously reconvey payment, with such certain pieces mortgaged bought estate real theretofore *4 of defendant, and also certain other estate certain real and shares mining company bought stock in a in at sales under executions favor against plaintiff.” of this and the defendant rulings retrial,
When this case court on the came on the re- appeal laAv to on became of the case be followed such the trial. necessary
It aaúII to restate and not be the entire case we refer to opinion the former for a fuller statement of the issues involved. It present say July, 1918, will in Mc- plaintiff, suffice at to the Ginnis, defendant, $23,220 in sum of stood indebted to 1917, plus per 6, at cent from December the interest thereon seven by judgment in costs, evidenced a of that Circuit and as date May given based on a Louis. This note Court of St. Avas money. 12, by Stark for borrowed This indebted- 1910, McGinnis to (the judgment) was to Stark note reduced to ness from McGinnis power duly by Mc- by with sale executed secured deed of trust May conveying 1910, security a half Ginnis, 12, as interest of date Denver, Street in business and lot on Fifteenth in a certain house Colorado, a designated property; and also by herein as the Denver 30, 1915, real con- mortgage power estate of sale dated June veying security a additional an undivided nine-twentieths tract of Belle Arkansas, wild known as County, land Chicot cutting by Island. This Mississippi island was formed River through and leaving a narrow neck and the old the island between debt, by mortgages new This and channel. these reduced secured long long due, was of had judgment, standing, past and Stark endeavoring same. of time been to collect The last extension May by January 11th to Stark McGinnis was from were writing recites other than Stark which creditors go into bank- pressing pay debts, agreed not to McGinnis to and he seized ruptcy voluntarily, so, property to do or his and forced judgment, Stark would be free under attachment or then some with this ex- mortgages judgment. his In connection his enforce gav'e Stark deeds agreement McGinnis executed tension. with the properties Arkansas conveyance the Denver and absolute name of of either or grantee blank, of the sale so that in case name mortgages, purchaser’s properties both under Stark’s these good insuring purchaser delivered, thus be filled could title. May 1st, McGinnis, plaintiff, pay and about failed mort-
July 1, 1918, proceedings to foreclose his Stark commenced properties gage Denver ad- liens on both the Arkansas and vertising selling property, the Arkansas same. ITe advertised July 8, .1918, Island, Belle on and the for sale under his July 22, 1918, his Denver deed of trust on days of the Arkansas respectively. sales had on such At were $3,000 at received purchaser property Stark’s sister became the Mc- which mortgagee’s conveying same to her. The deed deed by inserting name her completed Ginnis in blank was had executed would Any purchaser grantee recorded. and delivered and pur- sister title. Stark’s same muniments of have received these him. The mort- conveyed him later chased for fore- purchase however, gave right own gage, Stark the closure sale. setting chiefly complained grounds of in this suit as matter accounting misdescription
aside the and for an that a published thus land made notice of rendering This so held that sale unfair and voidable. *5 alleged petition, proof appeal the facts in the and the former under alleged. in the as there The variance this trial sustained facts on in the McGinnis Arkansas land as contained description the the published was as shown the notice of sale to Stark and "What copied our decision. as petition, the be stated ÍÍ59 regard petition allegations this court then of the said as to the on this shown to the the facts as misdescription applicable here to to-wit: trial/ Island the description “In this ease of the Belle the description giv'en as of the advertisement did not follow the course mortgage. transposition of words. The There is a erroneous, de- description contends that the in the advertisement misleading. that in the advertise- fective and The contends words, Island,’ ‘known should be held refer ment the as Belle words, ‘excepting qualify fractional sections range 1 that the township 16, 27 in east.’ The defendant contends n words,‘known as Belle not to the Island,’ sold, tract refer words, ‘known urge excepted. tracts so Defendant’s counsel that the description Island,’ may as eliminated from the Belle will description advertisement, complete certain in the This, think, is remain. we true.” legal notwithstanding was no however, that there held,
This court that land, and misdescription in the notice of sale of Arkansas of the good title, effect purchaser acquired yet thereunder ambiguous description as contained somewhat and uncertain might to deter such well be held prospective notice of on bidders discovering that on attending buying from bidders stop duty mortgagee, was this condition it be corrected. description could supposed error in the sale till such worded description manner in which held that It was which shown question its correctness raised a as to defendant sale, the bidding from at the reasonably prevented persons have misleading not description, should discovering mortgagee, on such become, himself, purchaser. land and proceeded to sell the developed, the the facts reasoning of this court to Applying the prospective to show that the evidence sufficient trial court found ac- land on bidding Arkansas on this from were deterred bidders less the land sold and that description, count of the uncertain Arkansas sale of the ruled that value, and its reasonable than payment to the on aside set known as Belle Island land yet McGinnis on the (defendants) due of the amount Stark estate Judgment was $20,285.20. en- agreed to be indebtedness, which was accordingly. tered proceeds Stark credited shows record further judgment and then note and on the Island in of Belle prop- the Denver ITe next balance. caused collect the proceeded proceeds of trust and credited the deed erty to be sold him. McGinnis indebtedness costs, on the sale, $7,500, less yet paid, were sued out being executions indebtedness *6 Ü6Ó judgment mining and a and in St. Louis
the house lot and some belonging in proceeds applied stock were sold and McGinnis the way. the same Also issued to several other counties executions were in this State and real estate McGinnis of there situated was sold proceeds applied the on this indebtedness. same trial court on the found evidence that there was no fraud or irregularity sales, in connection with other these but that same were fairly fact, ground setting conducted. no fraud or aside the sales, independent land, of the sale of the Arkansas is claimed gross other than inadequacy price such a of fraud, amounts by which is not sustained the trial evidence. The court refused to set aside the other sales.
Perhaps setting will by the matter be better understood out the gist of the appealed from, to-wit:
The court “doth joined find issues plaintiff the in favor of the respect property, the Belle Island in the described second petition amended County and situate in Chicot in the of State Arkansas, against plaintiff respect to the other real estate against described in the petition, second amended respect Queen stock Mining Company, Mineral Ranch petition. mentioned the said second amended “2. Under the law and evidence, adjudges the court declares that the shall be credit on his debt stated in petition by the second amended all sums realized B. Stark Charles plaintiff’s from the property; intestate and his the balance allowing credits; said debt shall after ascertained all the said per (6%) at per interest the rate of six cent annum to the date respective this and from the decree dates of the said credits shall be added ascertained debt; that, said balance the said from the total, any said shall be there deducted net income from the derived property Belle Island privies; the said Charles B. Stark or his that, upon payment of the balance due as last aforesaid defendants, the foreclosure of Island the Belle property shall be plaintiff. set aside and title thereto vested By agreement
“3. parties, court finds holds that the net balance of the debt and interest due the date of this de- cree the McGinnis estate to the estate of Charles B. Stark on the twenty basis last thousand, eighty-five aforesaid is two hundred and twenty ($20,285.20). dollars and cents ‘‘4. The court finds that there is no evidence warrant an order judgment authorizing redemption any the other except petition, property. mentioned in the the Belle Island no “5. The finds that has been fraud established case, other than that which to inhere said in the sale of the description. erroneous . . Belle Island under an . that no was ad- “8. The court finds and holds evidence of fraud hearing properties far as the other concerned. at the so are duced and, equity personam, holds that a court of acts in “9. The court jurisdiction parties suit, compel can it has de- when *7 although restitution, and do other acts of to make deeds fendant personal subject-matter suit—real or situate the —is country. in another state or mortgagee power “10. of sale The court holds that a with a and right mortgagor buy own is a for and at his trustee by good required to act with utmost faith fairness law and mortgagor. making sale, protect as to the interests of the so by mortgagee that, “11. The court holds the act of the even prevented bidding attending sale, one but bidder is from or from mortgagee anything the sale should be set aside. The must not do prevent competition which would at the sale.
“12. ordered, adjudged, plain- It is further and that the decreed tiff recover of the defendants the costs this cause and that execu- tion therefor.” issue ground plaintiff appeals
The defendant did not on appeal. that the trial court did not award him the full measure of relief to which he is entitled in that the of all the sold under the Colorado deed of trust and the executions on the also be set aside. appellant’s position, it, as we understand is that when the sale, mortgage, being
first that under because the Arkansas voidable misleading description land in the notice of sale inadequate price sold, pur- innocent at which it was and no being involved, rightfully then, as a matter of aside, chaser set law, subsequent sales made is entitled to hav'e the aside, Colorado collect the same debt set made under the also whether judgment. The on the Missouri deed trust or execution issued mis- defendant, Stark, became aware of the contention is that when leading description land, the same of the Arkansas and that sale, likely bidding suppress at su.ch he should did in fact authority to sell other not off that but was without called only judg- or an execution on the another deed of trust property under fair indebtedness, however satisfy the same ment based on and are might such other sales. Such other sales from fraud free inadequate prices, but that fact not grossly alleged to have been constituting on as a suf- and is not relied the evidence supported setting ground for aside such sales. independent ficient the effect that under a of cases to a number Plaintiff cites prop- or sold more beneficiary cannot sell cause or execution him, discharge due indebtedness erty is sufficient than discharge sold to the indebted- been enough property has when 11.62 154 Estes, v. void.
ness, a sale is unauthorized and further [Wells Farmers’ 435; Kelsay v. 299; Halligan, 75 291, Baker Mo. Mo. 622, 35, p. 173; J. sec. Bank, & Mo. C. Traders If treat the.Arkansas Such, this case. we however, sec. is not 565.] irust, judgment on and the mortgage, deed of the Colorado debt, the same remedies to collect note as cumulative secured discharge all operates to debt that a satisfaction of the one secured satisfied, or either discharged yet was not liens, this debt sale of the attempted or legally equitably, the sale or issue right preclude the “Partial satisfaction does land. 323; 23 J.C. judgment.” due on the execution the balance [23 the same applies to sales under principle J. the same C. And 450.] On the one indebtedness. mortgages given to secure or different having mortgagee, “A case, said: this court appeal of this single payment securities or cumulative sufficient any ap remedies all the ordinarily pursue debt, several satisfied.” his debt is propriate thereto until *8 levy said: “The 340, 72 Ill. the court Swartwout, Herrick v. In satisfy it, does value to of sufficient upon real estate of an execution operate, personal property, not, of -an execution levy like the judg of the of, a satisfaction levy undisposed as such is while the any its collection attempt enforce an as will bar ment ’’ manner. Cooley Judge said: “One Miller, 142, 19 Mich. McKinney v. debt, single a mortgages mortgagee, to secure holds several who debt option separately until his at his either of them foreclose is satisfied.” Stackfleth, Kansas, in the ease of Conklin Supreme Court of of law. 310, -announced the same rule
65 Kan. charged with suggestion should be is made that defendant fair have sold for at a property Island the amount the Belle to-wit, purchaser, unhampered a doubtful title same, such fair market value would fair and that market value damages however, This, is a suit for paid debt. not hav'e the entire applied, way, if that rule be in that and even to be measured us, court, nor it convince not the trial does evidence did convince extinguished the property would have debt a fair sale of that that was due on this indebted- void. There so as to make further sale any does plaintiff’s and evidence $24,000 at time of the over ness in that to be worth interest show a nine-twentieths not little effort to show the fair market plaintiff made amount. The subsequently it or that was much in ex- sold of the property value being credited, agreed realized, which, leaves an the amount cess of $20,285.20. balance due say is defendant
¥e desire to- also that no evidence that there design through “spirit greed” take a or with a sinister inability indebtedness, purposely advantage of pay McGinnis’ this way a a.s described the Arkansas of sale in such land the notice possible bidding bad prevent on that land for fear of a title The facts suit, acquire a sale. law with the intent to it at sacrifice way dishonesty impress impute do not not us that and courts should or bad motives without is no reason to believe cause. There a mere description uncertain notice of was other than perfect good not to have inadvertence made faith. Stark seems uncertainty discovered the till attention was description reading called to it bidders when the notice of sale to assembled puzzled hold, now and he was to know what to do. The fact that we light ought gone ahead facts, the vdiole that he have holding brought designedly with the sale is far from that he about bidding thereby. prevent this condition of affairs with the intent to While no one testified that he would bid intended yet larger price for, than land the sale should sold we hold that anything any irregularity be set aside unfair or vdiere there purchaser, said or done which was mortgagee, who became bidding. prevent unhampered free reasonably calculated recognize We, plaintiff’s contention therefore, the correctness of mortgagee, selling' power salé, that a when is a trustee required mortgagor good act in ab- and is faith making mortgagor. protect solute fairness in sale so as to Schroeder, L. 428; R. C. Mo. sec. Stoffel v. [19 149.] buy mortgagee does permitted And where the to and price, will look into inadequate at his own sale at an then irregularity proceedings circumstances, any and if substantial appears, will be set C. J. probable unfairness the sale aside. [23 *9 13; Moran, v. 1027; Brown, 41 J. Nelson 23 Mo. Durfee 678; C. in 57 been this 374, principles These of law have followed Mo. 379.] in setting of Belle Island Arkansas. in aside sale case plaintiff’s of “P'oints law in one proposition presented of is mortgages on differ- if a holds several and Authorities” that creditor attempts debt, to foreclose one properties same ent to secure the buys inadequate property price, at such in that an of them and the court or unfairness as warrant tainted with such fraud sale is cannot, holding setting creditor while onto aside, it then such in selling from preventing and thus debtor property' so sold debt, property pay off sell other money raise using it so-as to or different, debt execu- mortgage secure the same or under under Applying debt. this contention judgment for the same on a tion of the facts connected with sale that because case, it means setting that the court aside warrant 1164 prevented selling fact defendant from the Colorado
such subsequent sales, any property in fair Missouri, or such while every respect, must also be set aside. Corpus Juris, 41 proposition, To sustain this cites unfairly regards is to this effect: “Where the sale as conducted rights some of property, should set aside, the entire sale being although parties involved, innocent not no unfairness shown only authority tract as to another sold at the same time.” cited 24 McCarthy, to sustain the text is Lalor v. Minn. 417. This case go not to the In does extent the text indicates. that case a mort- gage power being designated of what conveyed sale was as and, 2 reality joined three tracts of but Tracts 1 and each other single building. but a constituted tract covered one The same separate loss, could not except great be divided and sold as tracts at actually which occurred, and the court set aside the sale as to these mortgagor. two tracts as unfair to the The third tract sold at the bought person same time a fair sale and the same participated profited by who had in and the unfair sale the other separately two tracts sold but which sold as should been one. The court aside also, set the sale as to this third tract but be- not necessary such consequence cause was a being of the sale unfair tracts, because, being as to the first two the sale unfair as to the two sold, follow, law, first tracts it would as a matter of that the depend entire sale would be set aside. Such result would on the facts particular case. that case there was but one though mortgage, one of land, they of more than one tract but were separate independent of land in sales different states hav- ing except no connection with each security for the same going details, say debt. Without into the it is sufficient to that the whole tenor of that is to case the effect that where the sale of several mortgage, tracts land are made under tlie one fact tliat the sale tract, warranting unfair setting as to one the court aside the tract, as to necessitate, does not aas of law, matter setting aside of the sale the other tracts where no fraud or un- court, effect, fairness is shown. The held that mortgagee as the right has the foreclose either single to secure a debt, one, discretion, sell under either at Ms one or more pieces validity of property, one necessarily such sale is not dependent on the validity another. it depends Whether is or not particular the facts of each given why case. Other facts were that sale set aside to all the land. Calloway,
Nor does Hendricks v. 565, support plain- Mo. *10 plaintiffs’ tiff’s contention. There owning mother died forty- three by tracts of land covered a deed of trust. Calloway acre J. W. purchase forty-acre tracts, designated to two of the wanted ás Tract A, willing enough and ivas pay to payffhe that tract to entire mortgage, leaving forty acres, the other B, Tract with unsold title subject children, plaintiffs, curtesy. to father’s life of estate Plaintiffs’ father acquire desired to full B title to Tract and he and Calloway conspired plan a carried out to have the entire tract sold for Calloway the amount willing pay was to Tract A and convey then back to the father Tract B. This selling amounted to land, more Tract B, necessary than was pay to to sell order entire secured debt. The sale was had at an unusual hour and bid- ding suppressed. was otherwise The court held the entire sale to prevented, voidable unless A, by as was as the case to Tract its going purchaser. into the hands an of however, innocent That entirety was an purchaser one deed of trust to one for a gross separate amount and not and severable sales of different tracts prices, or, here, different independent as having at distinct sales no with pay connection each other except single made to a indebted- ness, only and where one sale tainted was with unfairness.
This disposes unnecessary of the ease on its merits and makes points except dispose discussion of other raised of motion a filed by plaintiff in this Company court make Northern Trust Chicago, Illinois, party plaintiff as successor title the real involved, subject right estate of the administrator to sell same by authority pay probate original plain- court debts unpaid original tiff now plain- shown for want of The assets. pending ap- tiff died was while this case this court on the then, suggestion by stipulation, peal and death case was point revived in the afterwards name of the administrator. raised that the successor defendants’ demurrer in trial court necessary prosecution party title to land of the plalintiff’s favor and defendants an- point case. The was ruled Although trial found for and went to trial. swered over appeaJed land, the defendants have not plaintiff as to the willing defect, any, parties now to correct the is judgment on affirming the merits and de- As we are plaintiff. appealing, it will point best hav'e abandoned fendants parties so all procedure the motion proper to sustain accord joint motion o'f parties to this cause. The will be at interest Illinois, Company Chicago, to make said the Northern Trust party plaintiff sustained. Company a Trust Ferguson Hyde, is affirmed. trial court
CC., concur. Sturgis, C., adopted opinion by
PER CURIAM: The foregoing judges concur. All of the court. opinion