21 Mo. App. 679 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This is an action by the purchaser at trustee’s sale, against the trustee making the sale and the beneficiary in the deed of trust, for damages for deceit, whereby the plaintiff was induced to become the purchaser. The question was submitted to the court, sitting as a jury, upon an agreed statement of facts, after hearing which the court gave an instruction to the effect that the plaintiff could not recover and rendered judgment for the defendants.
The facts agreed upon, stated in outline only, were as follows: On the twenty-eighth day of November, 1882, Malinda Buckner executed a deed of trust in the usual form, conveying to the defendant Nease, as trustee, a parcel of ground in the city of Springfield, therein described by metes and bounds, to secure the sum of three thousand dollars, borrowed from the defendant Delzell, as curator of the estates of certain minors. On the third day of January, 1883, Nease, as trustee, and Delzell, as cestui que trust, executed to Ralph Walker a deed of release, releasing and quit-claiming to him a part of the land conveyed in the deed of trust, which part, the deed of release recites, had been conveyed to him by Malinda Buckner, which deed of release was
It is perceived that the question for decision is whether, in the facts thus agreed upon, there were facts sufficient to take the case to a jury, if it had been tried by a jury. It is true that the rule of caveat emptor applies to sales of this kind. The-trustee executes a naked power and enters into no covenant, and can be required to enter into no covenant, beyond the usual covenant against acts or incumbrancesdone or suffered to be done by himself. Barnard v. Duncan, 38 Mo. 170, 181. These are called “the usual trustee covenants.” Rawle Cov. 43. But the rule of caveat emptor does not exclude the right to maintain an action for damages for a deceit, where a deceit has been actually practiced; and we know of no rule which exempts a trustee, who makes a. sale in the execution of a naked power, from the consequences of fraud which would attach under like circumstances to other persons. If the trustee may be thus ■ liable, the cestui que trust, whose agent he is and who receives the benefit of the-fraud, may be liable with him, but we do not decide this point on the present appeal, as it is not argued. Where the trustee undertakes to sell a given tract of land, professes to sell it, offers it for sale to the highest bidder, if, by reason of something which he himself has-done since acquiring his title and power of sale, he has-become disabled from making the sale in whole or in part, but nevertheless does undertake to make it, will any one say that a purchaser, ignorant of this fact, to-whom the trustee fails to disclose it, is not defrauded? If the trustee could, without incurring the consequences of fraud, proceed to sell the whole two hundred and twelve and a half feet, after having previously released to another party twenty-seven feet of it, he might, for precisely the same reason, proceed to sell the whole tract
Buppressio veri will afford- grounds of an action at law for deceit equally with suggestio falsi, where the circumstances are such that the party is under the duty of making the disclosure. Early v. Garrett, 9 Barn. & Cress. 928, 932, per Bayley, J. Whether the party is under the duty of making i the disclosure must depend upon the circumstances of the particular case. Where-those circumstances are such that the vendor knows, or has reasonable ground to believe, that unless he does-make the disclosure, the purchaser will be liable to be misled to his injury, then it is his duty in good conscience to make it, and if he do not make it he is liable to the purchaser for the -damages which the latter sustains. But here there was something more than a mere-negative concealment. There was an affirmative representation by Nease, made in the most formal manner, .and repeated again and again, of his power to sell the-whole tract, as well as a concealment of the facts which disabled him from exercising the power. It is, therefore, unnecessary, in order to support an action for deceit upon these facts, to rest the case solely upon the obligation of the. defendants to make a disclosure which they did not-make.
Such would seem, from the agreed statement of facts,, to have been the case here. For thirty days the defendant Nease had advertised in a daily newspaper that he would sell the whole tract conveyed in the deed of' trust, describing it by metes and bounds, and referring to the deed of trust for identification. After thus continuously notifying the general public to come in and compete at the sale, he must have known that those members of the general public, who were not aware of the deed of release to Walker, would suppose that he was selling the whole tract conveyed in the deed of
Upon the agreed facts, then, there was not only a case to go to a jury, but the plaintiff was entitled to a judgment, at least, against Nease. But, as there is no statement in the agreed facts as to the amount of damage which the plaintiff sustained — nothing as to the value of the twenty-seven feet which was conveyed in the deed of release to Walker, and which the plaintiff supposed he was getting — but did not get, the plaintiff could not have recovered more than nominal damages. This defect in his case may possibly be supplied on another trial.
The judgment will be reversed and the cause remanded. It is so ordered.