Hassler v. Mercantile Bank

267 Mo. 365 | Mo. | 1916

BLAIR, J.

This is an appeal from a judgment for' defendant in an action in ejectment, instituted in the Louisiana Court of Common Pleas. In the view we take of the case it is unnecessary to state all the facts in detail, since plaintiff’s case depends upon the question whether a sale under a trust deed was valid or invalid.

Plaintiff’s husband, M. J. Hassler, and his brother, S. C. Hassler, formerly owned the land in suit and executed a deed of trust thereon to secure a $5,000 note they gave to defendant. In this trust deed plaintiff joined with her husband. Subsequently the equity in the property was conveyed to a corporation whose capital stock was almost all owned by plaintiff. A few shares were in her husband’s name and he was president of the concern and plaintiff was its secretary. Default in the payment of the $5000 note was followed by the advertisement and sale of the property in suit under the trust deed,, and at this sale one McCune bought and later conveyed the property to defendant. Plaintiff’s husband and agent, M. J. Hassler, president of the corporation owning the equity, attended the sale. S. C. Hassler, one- of the signatories of the trust deed but who had conveyed his interest in the equity to the • corporation mentioned, is not shown to have been present at the sale. The amount bid by McCune was the full and fair value of the property sold, and this sum was credited on the note secured, leaving an unpaid balance of several hundred dollars. By a subsequent transfer of other property and all the stock of the corporation mentioned, its books and papers, and certain personal property, this unpaid balance was extinguished and the note fully paid. Subsequently certain sales of the property in suit were made under judgments against the corporation obtained in actions begun about the time of the transfer of the corporate stock to defendant, service being had.upon M. J. Hassler as president of the corporation. One of these judgments was upon a claim by plaintiff for an alleged dividend declared some years previously. M. J. Hassler furnished the data for the institution of this suit and then .was served as president of the defendant corporation. The other judgment is also subject to some suspicion. The title acquired under these sales is of no value unless the trustee’s sale is void.

Plaintiff contends the trustee’s sale was and is a nullity because the name of S. O. Hassler, one of the grantors in the deed of trust, was omitted from the notice. Section 2843, Revised Statutes 190-9, requires that: “Such notice shall set forth the date and book and page of the record of such mortgage or deed off trust, the grantors, the time, terms and place of sale, and a description of the property to he sold, and shall be given by advertisement, inserted . . .’3etc.

The question is whether under the section the omission from the notice of sale of the name of one of two grantors renders void the sale, all other requirements being met, the person whose name has been omitted having parted with his equity and the representative •of the owner of the entire equity being present at the sale, a full and fair price being obtained for the property, and the balance of the secured note afterward being paid so that the person whose name was omitted from the notice is no longer liable directly or indirectly for any sum by reason of his signature on the note secured.

Ve have no hesitancy in saying the omission of S. C-. Hassler’s name from the notice in the circumstances in no way affects the validity of the trustee’s .sale and the full title passed thereby to McCune and by his deed now resides in defendant.

The principle necessitating this conclusion was substantially approved in Trust Co. v. Ellis, 258 Mo. l. c. 708 et seq. In that case the trustee’s notice of sale omitted to give the-book and page of the record of the trust deed, and this court held the facts of the case failed to show loss or injury on account of the omission and declared the sale valid.

In this case the owner of the equity, the corporation, was represented at the sale by its president; the public was advised sufficiently, since the book and page •of the record was given and a reference thereto disclosed the deed of trust; full value was bid and paid for the property. S. C. Hassler no longer owned the equity and was in no wise injured by the sale, since he had no equity to protect, and since also the subsequent payment of the balance due on the notes entirely extinguished his obligation. In accordance with the ruling in the case cited, we hold the sale valid. ' We are ■aware there are decisions in other States rigidly holding trustees to exact compliance with statutes as to notice, hut this court has long adhered to the rule announced in the Ellis case and sees no good reason for departing from it.

The trustee’s deed is criticised somewhat, hut an examination of it discloses it contains language apt to convey the entire title. Neither is there any substance in the suggestion that there should have been further evidence of the tipie during which the notice was published. The recitals in the trustee’s deed showed compliance with the statute and were not contradicted. This was sufficient. [Sec. 2858, R. S. 1909.].

The judgment is affirmed.

All concur.