Keith v. Browning

139 Mo. 190 | Mo. | 1897

Burgess, J.

This is a suit in equity to redeem certain real estate in Kirksville, Missouri, from sale under deed of trust by the trustee therein named, under the power conferred upon him by said deed of trust.

On September 12, 1890, one W. C. Browning was the owner of the property in question, and on that day he executed to J. M. McCall, trustee, a deed of trust with power of sale on said property to secure the payment of a note of $450, of the same date, executed by Browning to one C. W. Billeiter.

The property was sold by the trustee under the deed of'trust on the thirteenth day of October, 1892, after having been duly advertised, and .defendants Eouts and Eckert became the purchasers at the price of $500. Subsequently to the execution of the deed of trust, and before the day of sale by the trustee, the plaintiffs acquired by purchase and deed, all of Browning’s interest in the property, paying therefor $881 which included $400 in cash, and the settlement of an account of Browning to plaintiffs for $481, which he owed to them for goods purchased by him from them.

Plaintiffs knew nothing of the property being advertised for sale, nor did they learn of it for two or three days after it was sold. As soon as they learned that it had been sold, they sent their agent, J. Gt. Hale, to Kirksville, with directions to redeem the property from the sale. He arrived there on the morning of the sixteenth of October, 1892, sought out defendants, Eckert and Eouts, and informed them that he was representing plaintiffs, and of their purchase of the property from Browning, and asked them to be allowed to' redeem it and offered to pay them the amount they had bid for it, and a reasonable sum for their trouble iix regard to the matter. He also offered to pay them on the next day $600, in satisfaction of the trust deed lien and compensation for their trouble, and demanded that plaintiffs be permitted to redeem the property, but they refused to permit them to do so. Defendants claimed that the property was worth $1,800 but offered to deed it to plaintiffs for.$1,250. Plaintiffs through their agent’declined to accept defendants’ offer, and at once instituted this suit.

The trial resulted in the dismissal of plaintiffs’ petition, and a judgment against them for costs. They appeal.

Plaintiffs’ first contention is that as section 7079, Revised Statutes 1889, provides that when real estate is sold by. the trustee in a deed of trust according to the terms of such deed, and such real estate is bought in at said sale by the cestui que Mist or his assignee, or by any other person for him, it shall be subject to redemption by the grantor in said deed or his executors, administrators, or assigns at any time within one year from the date of said sale, on payment of the debt and interest secured by said deed of trust and legal charges, if it be alleged and proven that the property in question was purchased for the cestui que trust, or for him and the .purchasers jointly, the case comes within the statute, the same as if the cestui que trust had bid the property in in his own name. The correctness of this position will not be questioned, for it is manifestly in accord with the provision of the statute. But that statute has no application to this case.

In the case in hand there was no evidence whatever showing or tending to show that defendants bought in the property for the cestui que Mist, or that they were his assignees, or that he had any interest whatever in the purchase of the property by them. Moreover, the petition contains no such averment, and it is only under such circumstances that the grantor in the deed of trust or the owner of the equity of redemption is permitted under the statute to redeem the property after its sale by the trustee under the deed of trust. To rule that under the statute the holder of the equity of redemption can redeem from such a sale at which a party other than the beneficiary in such deed, his assignee, or some person for him becomes the purchaser, would be to enlarge the statute by ingrafting onto it a provision which does not now exist. It was intended for the benefit of the grantor in the deed of trust, who can avail himself of its provisions upon certain conditions set forth in that and the following section in the event that the beneficiary, his assignee, or some other person for them or either of them, shall become the purchaser at the sale, and not otherwise.

Plaintiffs had no arrangement or understanding with Biiieiter by which the sale of the property was to be deferred, and certainly it was not obligatory upon him to give them personal notice of his intention to sell, nor is there any pretense that it was not advertised for sale in conformity with the provisions of the deed of trust. Whatever arrangements plaintiffs had with regard to these matters, if any, were with Browning and Pool, who had no control over the trustee, or of the beneficiary in the deed of trust. There was no evidence of fraud upon the paid of anyone connected with the sale of the property, and the inadequacy of price paid by defendants is not of itself sufficient to justify setting aside the sale by the trustee, and permitting the plaintiffs to redeem. “Mere inadequacy of price, unaccompanied by fraud or unfair dealing, is not a sufficient ground for setting aside a sale under a mortgage or deed of trust.” Hardwicke v. Hamilton et al., 121 Mo. 465.

The holder of the equity of redemption in real estate covered by a mortgage or deed of trust with power of sale in the trustee therein named, is not entitled to redeem from a sale of the property by such trustee as a matter of course-, but only upon equitable or statutory grounds, and as the plaintiffs have not shown themselves to be entitled to equitable relief, and the facts disclosed by the record do not bring them within the provisions of section 7079, Revised Statutes, swpra, the judgment must be affirmed, and it is so ordered.

Gantt, P. J., and Sherwood, J., concur.