Laclede National Bank v. Richardson

156 Mo. 270 | Mo. | 1900

ROBINSON, J.

The Laclede National Bank.of St. Louis presented to the probate court of the city of St. Louis, for allowance against the estate of J. H. Simpson, deceased, its claim based upon two promissory notes made by the deceased in its favor, dated respectively February 6th, and February 15th, 1893, payable to the order of the bank, and due ninety days after date, each for the sum of $20,000. These notes are in the form of what is known as “collateral notes,” containing provisions whereby certain personal property is pledged as security for their payment, with power to sell such security in event of non-payment of the notes, and contain the following power of sale: “In default of payment of this note at maturity I hereby authorize said Laclede National Bank, or any of its officers, to sell said collateral at public or private sale, or otherwise, at its option, without notice, and to apply the proceeds to the payment of this note, with all damages, interest, charges and costs. Said Laclede National Bank of St. Louis shall also have the right at any such sale to bid for or purchase said pledged property, or any part thereof, in its own name, and for its own use and benefit.” The property mentioned in these notes, as pledged for their payment respectively, was numerous promissory notes secured by several deeds of trust on real estate. Some of these deeds of trust, so pledged, were first liens on the real estate therein described, while others were second, and still others third liens. It seems that Simpson during his lifetime was a regular customer of the bank, keeping a deposit there, and that in the course of his dealings with the bank the latter made these loans, taking the notes and deeds of trust as security therefor, and held them at the time of Simpson’s death, which occurred on February 23, 1893. After the death of Simpson, the bank employed one F. "W\ Mott, a real estate broker, to take charge of and attend to the collection of the collaterals in question, placing the entire matter in his hands for the purpose of realizing on them. During the following year Mott succeeded in collecting about $15,000, and thereupon the bank concluded to sell the col-laterals remaining uncollected at public sale under the power contained in the notes in question, and directed Mott to proceed accordingly. On February 16, 1894, written notice was served on defendant Richardson, public administrator in charge of the Simpson estate, that the bank would on the 19th day of February, at 11 o’clock a. m., sell at public sale all the Simpson securities remaining uncollected, at the east front door of the court house in the city of St. Louis. This notice contained a description of the collaterals to be sold and was signed by the bank itself. A notice of sale to occur at the same time and place was also published in the St. Louis Daily Post Dispatch on the 15th, 16th, 17th and 18th days of February. This notice, like the former, contained a description of the collateral securities to be sold, with reference to the book and page of the record of the deeds of trust securing the same, and was signed by “F. W. Mott, agent.” The opening paragraph in this notice is in the following words: “Notice is hereby given that the undersigned will, at the east front door of the court house in the city of St. Louis, Missouri, on Monday, February 19, 1894, at 11 o’clock, sell for the benefit of whom it may concern, the following described .promissory notes;” here follows a description of the securities remaining unpaid, formulated in the maimer above indicated. At tbe time fixed for tbe sale tbe president of the bank, Mr. Hoffman and his attorney, J. S. Hornsby, together with Mr. Mott, the agent of the bank, and those in attendance at the sale congregated just immediately outside of the east front door of the court house, and the weather being cold and disagreeable it "was suggested that those present repair to the inside of the glass storm doors at the entrance where it would be more comfortable. These doors are temporarily placed at the entrance of the court house during the 'winter season, and are glazed for a distance of about three feet from the bottom. The printed notice of the sale, as published in the Post Dispatch, was then read by Mr. Mott, and there, out of view of the passing public, the collateral securities were offered for sale by him, and were all ultimately bid in by the bank at the grossly inadequate sum of $8,825, far below their actual cash value. There were only three or four bidders at the sale, which was conducted by Mott as agent and lasted about thirty minutes. The face value of the collateral notes sold by Mr. Mott amounted to upwards of $40,000. The testimony is conflicting as to the number of persons present at the sale. Some witnesses fixing the number present at fifteen, while others testified that the attendance did not exceed six at the outside. The information given at the sale was very meager. The defendant’s attorney, R. M. Nichols, who was present at the sale, on being asked by Mr. Hoffman, president of the bank, if he had anything to say about the sale, replied, in substance, that he objected to the sale being made under the circumstances, but would make his objections to the court thereafter. Previous to the advertisement of the sale there had been several interviews between the prseident of the bank and Mr. Nichols, on behalf of the administrator, touching the collaterals held by the bank, in which it was agreed that the administrator and the bank should act in harmony in collecting these collateral notes, and that the balance collected, after paying the bank, if any, should be turned over to the administrator. As the result of such interviews, Mr. Nichols testified that' he was induced to believe that the bank would not exercise the right to sell given in the collateral notes. After giving the estate credit for the amount for which the securities were sold the bank presented its claim against the estate to the probate court of the city of St. Louis for the balance claimed to be due on the collateral notes, which claim was by the probate court allowed for $21,704.66, with interest at the rate of eight per cent and placed in the fifth class of demands. Thereupon defendant duly appealed to the circuit court, and the cause having been referred to A. N. Crane, to try all the issues, the referee decided that the sale of those securities so made by Mott under the power contained in the collateral notes was void, and required the bank to account for all the notes purchased by it at such sale, finding in favor of the bank only for the amount remaining due after said accounting. The bank filed exceptions to the referee’s report, which were overruled by the circuit court, and the bank brings the case here by appeal.

It is conceded that under the power contained in the Simpson notes the bank had authority to sell the securities held by it either at public or private sale. The only question, therefore, presented by this record for adjudication is the validity of the public sale of the sundry notes and deeds of trust held by the bank as security for the loan in question. The referee declared the sale invalid because the printed notice of the sale did not state upon what authority or by virtue of what power the sale was to be made, no reference whatever having been made to the pledge orpower under which Mott was acting in making the sale,- nor was any mention made of the ownership of the collaterals, nor was it stated upon what terms the sale would be made, whether for cash or on time; besides there was nothing in the published notice indicating that the sales of these securities r, was made in behalf of the bank. And further in view of the character and number of the securities sold and the manner in which the same were secured the four days’ advertisement was inadequate in point of time to enable prospective purchasers to examine into the value of the securities to be sold.

That the bank held these securities in trust is undoubted. It, therefore, became the imperative duty of the bank, in exercising the rights conferred by the power of sale contained in the collateral notes, to use the utmost good faith.

In Dana v. Buckeye C. & C. Co., 38 Ill. App. 371, in discussing the power of sale contained in a collateral note similar to those here under consideration, the court said: “It is an authority to sell at public or private sale, but creditors, in whom such authority is vested, can not exercise it otherwise than under a trust for other creditors’ benefit as well as their own.... That a person holding property or securities in pledge, occupies the relation of trustee for the owner, and as such, in the absence of special power to do otherwise, is bound to proceed as a prudent owner would do with his own.” Oolebrooke, in the second edition of his most excellent work on Collateral Securities, section 118, thus states the rule: “Such a power given by contract, however, so far as it enables the pledgee to extinguish the right of the pledgor to redeem, will, as other contracts affecting equities of redemption, be construed favorably for the interests of the pledgor, so far as is consistent with the rights of the pledgee, .... and a sale must not be forced for barely enough money to secure the payment of the debt.” In 2 Perry on Trusts (1 Ed.), see. 602o, it is said: “Trustees and mortgagees, in the execution of their powers, must use the utmost good faith toward all parties in interest. This proposition can not be too strongly stated and enforced. They must act impartially for every person who has any rights in the estate.....They must use every effort to sell the estate under every possible advantage of time, place and publicity. They must exercise every discretion, so far as they have any, in an intelligent and reasonable manner.” It devolves upon the pledgee in the exercise of the powers given under the pledge to so conduct the sale as not to sacrifice the securities held by him, and in event the pledgee unfairly or unnecessarily prejudices the rights of the pledgor the sale will be set aside. Again at section 602x, in speaking of the exercise of powers by trustees, the same author says: “They are scrutinized by courts with great care, and will not be sustained unless conducted with all fairness, regularity and scrupulous integrity.... .If proper notices of the sale are not given, or if the proceedings are in any way contrary to justice and equity, the sale will not be allowed to stand.” Nor will the trustee be allowed to delegate his power or duty in the premises. And where, as in this case, the power of sale is general and no particular form is prescribed or pointed out in the collateral notes of executing the power it became and was the duty of the bank to give such notice in a reasonable and proper manner, and if it failed to do so the sale for that reason might properly have been invalidated. In such case the notice must be certain both as to time, place and the terms of sale, and the securities sold must be described with sufficient particularity to identify the property to be sold and so as to invite competition. [Perry on Trusts (4 Ed.), sec. 602q and 602r.] The purpose of the notice is to advise the public of property to be sold, the time when, the place where, and the terms upon which it will be sold. In the circumstances of this case, we are of opinion, that it devolved upon the pledgee in its notice of sale to refer to or state the power and authority under which the sale was to be made; but it is contended by counsel for appellant that inasmuch as no notice was pro' dded for by the collateral notes the bank was at liberty to act as it saw fit in this regard, provided some notice was given to the public of the sale. This, as already seen, is not the law. The clause authorizing the sale of the securities in question without notice must we think be held (to refer to a waiver of notice only so far as the pledgor was concerned, and has nothing whatever to do with a public sale. The latter, as we have seen, could not be made without some due notice to the public. Otherwise what could reasonably bé anticipated but a sacrifice of the security for want of bidders duly informed upon the subject?

The power of sale contained in the Simpson notes expressly authorizes the bank or its officers to sell in case of default. There is no question in our mind that in making such sale the bank had the right to act either through its officers or any agent it might designate. A corporation, as is well known, from its very nature is incapable of acting-only through the instrumentality of its agents. [Waterman on Corps., sec. 101; N. Y. & N. H. Railroad v. Schuyler, 34 N. Y. 30.] Having decided to sell these securities at public sale it was incumbent on the bank in the printed advertisement to show by virtue of what authority the sale was to be made.

Here was one of the strongest financial institutions in the State seeking to realize on sundry notes and deeds of trust having an aggregate face value of over $40,000. Can it be said that as trustee the power of sale contained in the collateral notes was properly exercised without giving the weight of its name to the transaction, and in making the sale in its own name? In-other words, can the sale be said to have been made on behalf or in the name of the bank? The record shows that Mr. Mott advertised and made the sale in his own name, and neither in the notice, nor in conducting the sale was his principal disclosed. The printed notice under which the sale was made was in his own name, signed “E. W. Mott, agent,” and says: “Notice is hereby given that the undersigned will, at the east front door of the court house in the city of St. Louis, Missouri, on Monday, February 19, 1891, at 11 o’clock, sell for the benefit of whom it may concern the following described promissory notes.” It does not appear from the notice that the bank was making or in any wise connected with the sale of these securities, or that the sale was being made in behalf of the bank, nor is any reference made to the ownership of the securities sold, or pledged, or by whom pledged. These are matters in respect to which the public should have been advised by the printed notice of sale. It is true the bank itself served a written notice on respondent similar to the notice printed in the Post-Dispatch. This notice, however, was neither read at the sale, nor acted upon in making the sale. Although the president of the bank was present at the sale his purpose in attending the sale was to bid the property in for the bank, which he did accordingly. Notwithstanding the presence of the president of the bank, the sale seems to have been conducted throughout by Mott in his own name, without, at any time disclosing his principal. If the advertisement had been in the name of the bank or so framed as to state upon what authority or by virtue of what power the sale was to be made, the public would thereby hkve been apprised that the bank was seeking to sell certain securities upon which it had loaned money and its known financial standing in the community would doubtless have called more bidders together, and resulted in a more advantageous sale. But the notice as published did not refer to the authority under which the sale was being made, nor point out the owner of the collaterals. Moreover, the bank, in our opinion, did not exercise a proper discretion in attempting to make a sale of this class of securities without first giving the terms upon which the sale was to be made, and describing the securities and deeds of trust to be sold with sufficient particularity and certainty to inform the public of what property was to be sold, so that prospective purchasers could examine the securities offered. The notice did not sta+e tbe sale would be made for cash, or partly on credit, nor undertake to give the terms upon which it was proposed to make the same, nor was it even stated that the sale would be made at public vendue to the highest bidder. The notice should have given such a description of the securities and real estate covered by the deeds of trust as that they could be identified and examined, the mortgaged premises and their value ascertained. Besides, the prospective bidders were entitled to know whether they would be required to pay cash or part cash and a part on time. In a transaction of this magnitude involving the sale of $40,000 worth of securities the prospective purchasers should have been advised as to the terms upon which such securities could have been bought. It is not reasonable to suppose that the public would attend a sale of that magnitude without knowing the precise terms upon which it would be made; otherwise it might result in a sacrifice of the securities. It was the plain duty of the bank in a sale of this character, in the exercise of a sound discretion, to inform the public in reference to these matters, and having failed so to do, in the circumstances of this case, the sale was of doubtful fairness to the pledgor estate. Neither did the bank exercise a sound discretion in selling these securities when . only three or four bidders were present and the weather so inclement that the parties in attendance were compelled to retire within the glazed storm doors of the court house, and there, out of the public view, sell notes and mortgages having a face value of $40,000 and upwards, to itself, for about one-fifth of the actual value of such securities; a sum so grossly inadequate, that the mere statement of it shows, there must have been some mismanagement on the part of the pledgee. While it is true, as a general rule that such sales will not be set aside for mere inadequacy of price, providing proper diligence was used by the trustee in selling; but where, as in this case, the weather was so inclement that those present were compelled to withdraw inside of the storm doors of the court house, the bidders so few, and the sum offered so low the bank in the exercise of a sound discretion should have adjourned the sale until such time as the same could have been made under more favorable circumstances. Having failed to do so, the sale might for that reason have been set aside.

In discusing the duty of the trustee to adjourn the sale where there were only a few bidders and the sum offered inadequate to the value of the property, Perry on Trusts (4 Ed), section 602u, says: “If an adjournment of the sale is not prohibited by the power, the donee of the power may adjorn the sale to another time and to another place. Such power is implied. Of course it is a discretionary power, and must be exercised in good faith; it may be the clear duty of the trustee to adjourn the sale, and an evidence of bad faith not to adjourn; as, if there are few or no purchasers present and the bids are very low and inadequate to the value of the property.” Having power, under the exercise of a sound discretion, it was the clear duty of the bank to adjourn the sale in order to prevent a sacrifice of the securities and obtain a fair price therefor. [2 Jones on Mortgages (5 Ed.), sec. 1873.] The trust relation occupied by the bank toward the pledgor made it incumbent upon the former to obtain the best possible price and to use every reasonable means to obtain the full value of the pledged property. The condition of the weather and the absence of any considerable number of bidders rendered an adjournment necessary in order to prevent a sacrifice of the securities.

In view of the character of the securities sold, consisting of numerous notes secured by sundry 'deeds of trust on different lots of land, we do not think the bank exercised a proper discretion in selling on four days’ notice. The notice given was wholly inadequate to enable prospective purchasers to investigate into the value of the securities offered. In tbe sale of tbe collaterals in. question tbe amount to be realized therefrom is governed' to a great extent at least by tbe value of tbe property embraced in tbe deeds of trust securing tbe same; consequently time and opportunity should have been given for an examination of tbe notes and property covered by deeds of trust securing tbe same. It was expecting too much, within tbe four days given, to examine all these matters, and it certainly can not be claimed any prudent person would have sold similar securities on such short notice, owned absolutely by himself.

Counsel for appellant argues that respondent, by bis attorney, was present at tbe sale and made no objection thereto, and consequently can not be beard to complain. This point was not made in tbe court below but is raised for tbe first time here. Tbe practice in this State has long been settled that a point not presented and passed upon by tbe trial court will not be considered by tbe appellate court. If, however, this question was properly before tbe court for adjudication tbe point would have to be ruled against tbe appellant, as tbe testimony shows that counsel for respondent in tbe presence of those in attendance at tbe sale openly protested against tbe sale being made, by announcing that be would present bis objection thereafter to tbe court, thereby distinctly negativing any acquiescence in the sale then about to take place, and it must have been distinctly understood by tbe officers of tbe bank that tbe respondent, as be bad a right to do, questioned appellant’s right to make tbe sale under tbe circumstances. Having indicated to those concerned bis opposition to tbe sale, be can not be said to have acquiesced in tbe subsequent proceedings, nor was be required to state bis specific objections thereto, especially where be was not asked so to do. Moreover, it is not claimed that tbe bank was misled by any acts or conduct of tbe respondent or bis attorney.

Eor tbe reason indicated tbe judgment of tbe circuit court will be affirmed.

All concur.