157 Mo. 199 | Mo. | 1900
This is an appeal from the circuit court of Jackson county. The action was commenced on May 15, 1896. The petition contains two counts. In the first count plaintiff prays the court to set aside a certain trustee’s sale made by defendant Yaughan as trustee to defendant Caesar and to order the trustee to make a deed to plaintiff for a certain part of the real estate covered by the trustee’s deed, and in the second count he prays to have the trustee’s deed to Caesar set aside and a re-sale of the property ordered.
The petition in substance alleges that plaintiff on February 21, 1896, was the owner of lot A and lots 1 to 7, both inclusive, and lots 10 to 29, both inclusive of Talbott Place, an addition to Kansas City, Missouri, by virtue of a purchase at a trustee’s sale under a second mortgage on said property to the Phillips Investment Company, dated June 26, 1893,. and afterwards conveyed by said company to plaintiff by quitclaim deed on April 29, 1896. That at the time he acquired said title there was then a prior deed of trust thereon of date July 1, 1889, given by Leander J. Talbott and wife to Samuel Jarvis as trustee to secure a note for $38,000 given by said Talbott to Jarvis-Conklin Mortgage Trust Company. That said note had been assigned to and was owned by "W. J. Caesar; that on January 1Y, 1896, Samuel M. Jarvis appointed in writing E. G-. Vaughan as trustee to
The second count of plaintiff’s petition was identical with the first count down to the prayer, with the following superadded:
“Plaintiff further alleges that plaintiff and said Char*207 lotte G-. Harwood were not prepared -to bid on said real estate as a whole, bnt they were prepared to bid on each and every parcel thereof, and that with competitive bidding on the parcels on the part of said Caesar, plaintiff and said Harwood, each of said lots would have sold for a fair price, and all the lots for much more in the aggregate than the $21,500 for which said real estate as a whole was knocked down to said Caesar. That said Yaughan and said Blakely, the agent of said Caesar, well knew that if the said real estate should be sold in separate lots, and said Caesar compelled to bid on the separate lots, the said plaintiff and Harwood would have bid upon each lot and that in order to buy every lot said Caesar would have had to pay a fair price therefor, and that his whole debt might have been paid without the sale of all said real estate; and said Vaughan as trustee and Blakely as agent of said Caesar improperly and unlawfully and for fraudulent purpose of preventing bidding and in order to enable said Caesar to. buy all the said real estate and to leave as large a deficiency as possible on said $38,000 note, did arrange said method of sale, and did conduct said sale as hereinbefore set out, all to the manifest injury of the plaintiff, who was the owner of the equity of redemption in said real estate, and was entitled to have said real estate sold in any lawful manner that he might elect. Plaintiff alleges that he has no adequate remedy at law and that he will receive irreparable injury, unless the remedy herein prayed for is granted. Wherefore, plaintiff prays that said pretended sale to said Caesar of said real estate by said Yaughan, as trustee, and the said deed made in pursuance thereof be set aside and declared null and void and that said Yaughan, trustee, be instructed, when again called on by the holder of said $38,000 note to sell said real estate, to sell the same in parcels and by lots as designated*208 on tbe recorded plat of said Talbott Place, and for suck other and further relief as to the court may seem proper.”
The answer of defendants, Caesar and Yaughan, omitting caption, was as follows:
“The defendants, "VY. J. Caesar and E. G. Yaughan, trustee, for answer to the first cause of.action in plaintiff’s petition (this being an amended answer so far as concerns said Yaughan) deny each and every allegation in said first cause of action mentioned except such as may be hereafter admitted.
“Second. And further answering they admit that the defendant Caesar, bought the property described in said first cause of action and paid therefor the sum of twenty-one thousand five hundred dollars at a sale made by the defendant, E. G. Yaughan, trustee, under the provisions of the deed of trust described in said cause of action; they state that said property in said cause of action described was offered for sale by said Yaughan as trustee, upon the following terms; that is to say, before beginning said^sale said trustee openly announced that he would offer the several lots described in said cause separately, and the bids thereon would be noted, but the property would not be knocked down or sold except as hereinafter mentioned; that he would offer said property as a whole, and note the bid thereon, but not knock the same down; that he would then give the bidders for sale said lots separately an opportunity to increase their several bids; and that he would then give the bidder or bidders for said property, as a whole, an opportunity to increase their bids if they so desired, and that he would strike off the property to the bidders for separate lots if the aggregate of their bids equaled or exceeded the bid for the said lots as a whole. That at said sale, so made under said deed of trust and under said announcement, the plaintiff, Sam Lazarus, and one Charlotte G. Harwood, bid the amounts for*209 the lots as alleged in said cause of action, which bids aggregated the sum of eighteen thousand six hundred and fifty dollars; that said Blakely in behalf of said Oaesar bid the sum of twenty-one thousand five hundred dollars for said property as a whole; that thereupon said trustee called upon said Lazarus and Harwood, or any other who might be present to increase their bids or make new bids upon said lots separately if they so desired; that said Lazarus and Harwood refused to bid further on said property and there being no other bid on said lots the bid of said Blakely in behalf of the defendant Oaesar, for said lots as a whole was accepted and the property stricken off and sold to said Oaesar, as above stated, for the sum of twenty-one thousand five hundred dollars. These defendants state that there were no other bidders at said sale excepting those mentioned and one John A. Moore who announced that he would bid on said property only as a whole and not as separate lots. And these defendants answering further say that said property was sold openly and fairly and by the mode adopted obtained a better price for the same than was offered by said bidders for separate lots, and they ask judgment for -cost herein.
“Third. And for a defense to the second cause of action in plaintiff’s petition set forth, these defendants say that they deny each and every allegation therein contained not hereinafter admitted.
“Fourth. And further answering said second cause of action these defendants state that they admit that the defendant Caesar bought the property described in said cause of action and paid therefor the sum of $21,500 at a sale made by the defendant, E. G-. Vaughan, as trustee, under the provision of the deed of trust described in said cause of action, and they state that said property was offered for sale*210 by said trustee in tbe following maimer: that is to say, before commencing to cry said sale, the said trustee announced that he would offer said lots separately and note the bids thereon, but would not strike off nor sell said lots except upon the terms hereinafter mentioned; that he would then offer said property for sale as a whole and note the bids therefor in that manner; that he would then give to the bidders for separate lots an opportunity to increase their bids if they so desired or allow any one to further bid on said lots separately; that he would then give the bidders for said lots as a whole an opportunity to increase their bids if they so desired, and that he would knock off and sell said property to the bidders for separate lots if the aggregate of their bids equaled or exceeded the bid for said lots as a whole; otherwise he would knock off and sell said lots to the highest bidder therefor as a whole; that said announcement was fully understood by all present; that there were no bidders at said sale except the said Lazarus and Charlotte Gr. Har-wood by her agent John T. Harwood, and John A. Moore and the said Blakely, agent for said Caesar as aforesaid; that at said sale so made and under said announcement the said Lazarus and Charlotte Gr. Harwood bid the amounts for the lots as alleged by the plaintiff in his second cause of action, which bids aggregate the sum of $18,650; that said Blakely the agent of said Caesar and in behalf of said Caesar bid for said lots as a whole the sum of $21,500; the said trustee thereupon called upon and notified said Lazarus and Har-wood and any other who might desire to bid for said lots separately to increase their bids upon the same if they so wished; that the said Lazarus and said Harwood refused to bid further for said property or make any other bid than those mentioned in said cause of action, and there being no further bids for said lots separately, the said lots as a whole were stricken off and sold to the defendant Caesar at the*211 pice and sum of $21,500, it being tbe bigbest bid for said property. These defendants say that said property was sold fairly and by tbe mode adopted as aforesaid brought nearly three thousand dollars more than it would have brought by the mode insisted upon by the plaintiff in this action. They further deny that the trustee had made any combination with the said Blakely as agent for Oaesar or the said MoOre or any one else in relation to the sale of said property. They further say that the method adopted by the trustee in this cause of action is a common mode of sale of property at public sales in Nansas Oity. They further say that said Oaesar has paid said sum so bid by him, and that they executed and delivered to him a deed for the property which is of record in the office of the recorder of deeds of Jackson county, Missouri, in the book and page as mentioned in plaintiff’s petition and having fully answered they ask to be ■discharged with costs.”
The reply of plaintiff, omitting caption, was as follows:
“Now comes the plaintiff, Samuel Lazarus, and for his reply to the answer of the defendants, denies that the property mentioned in said answer was sold fairly or that it brought a better price than it would have brought if offered in separate lots; plaintiff denies that the method of sale adopted by the trustee in this cause is a common mode of sale of property at public sales in Kansas City; plaintiff denies that said Caesar has paid- the sum bid by him in any other way than by a credit upon the note secured by the deed of trust under which the sale was made; plaintiff admits the other allegations of new matter contained in said answer.”
The evidence tended to prove the allegations in the first ■count of the petition. Indeed they are practically admitted and the question arises whether or not under the facts and circumstances the trustee’s sale to Caesar should be set aside ■and he should be required to convey to Lazarus the several
As to this first count there is no charge of fraud or collusion and no evidence to sustain such a charge had it been made. In a word, the contention of plaintiff is that it was the unqualified duty of the trustee to sell the property in separate parcels and not in a lump, although by the latter course the property did bring a larger sum to apply on the mortgage debt. "While it may be conceded that where a tract of land has been divided into parcels or lots for separate and distinct enjoyment, the presumption is that the property will realize more when sold in parcels than in one piece, because such a sale will better correspond to the probable wants of the purchasers and their ability to purchase, but this is by no means á conclusive presumption.
On the contrary the books abound with cases which hold that a discretion is vested in the trustee to sell in the way which will produce the largest sum, and this court has often refused to disturb a sale en masse simply becafise the land was not sold in parcels, but has required in addition, evidence of fraud, unfair dealing, or abuse of confidence. Thus in Carter v. Abshire, 48 Mo. loc. cit. 302, this court said: “A trustee, in exercising his duties and powers under a trust deed, is a trustee for the debtor, and is bound to act in good faith and adopt all reasonable modes of proceeding
There is nothing contrary to this in Sumrall v. Chaffin, 48 Mo. 402.
In Benkendorf v. Vincenz, 52 Mo. loc. cit. 444, the court says: “The mere fact that the property conveyed by deed of trust is sold in gross is not per se sufficient to avoid the sale; and no case that I am aware of has gone to that length. There must be some attendant fraud, unfair dealing, or abuse by the trustee of the confidence reposed in him; or some resulting injury from a sale made in this way, in order to obtain the aid of a court of equity to divest a title thus acquired. In the very nature of things some latitude of discretion ought in this regard to be allowed the trustee; indeed, the very instrument conferring the power contemplates this, and so long as his acts are free from any suspicion of bias, and that discretion is not arbitrarily nor unsoundly exercised, those acts will be-exempt from equitable interference.”
In Tatum v. Holliday, 59 Mo. loc. cit. 428, Wagner, J., for the court, says: “There are instances in which the whole of a piece of property will sell for more than it would by being separated, and in all such cases the trustee must exercise a sound discretion.”
Onr conclusion is that there is no evidence of fraud or unfair dealing on the part of the trustee and no ground for equitable interference shown by plaintiff on the first count in his petition..
The second count is in all respects like the first, save that there is superadded a charge of collusion between the agent of defendant Caesar and the trustee to prevent a sale in parcels in order to enable Caesar to buy all of said real estate and leave as large a deficit as possible on the Talbott note. As already remarked, Talbott, the maker of the note, is not before the court seeking.to have the sale set aside, because his land was sacrificed, and in view of the other allegations of the petition wherein plaintiff complains that the trustee did not accept a bid for $18,650 instead of the bid for $21,500, this solicitude for Talbott strikes us as inconsistent with plaintiff’s first count. It is difficult to discern how plaintiff was injured because Caesar was not compelled to pay more for the property.
It is not alleged what the true value of the property was, nor the amount of'the debts against it, nor that any injury resulted to plaintiff because Caesar was not compelled to bid more for the property. Granting that the property might have been sold in such a way as to have paid all of Caesar’s debt of $45,000 and the taxes, still it is not apparent how plaintiff would have been benefited or why a failure to realize the amount of the debt entitles plaintiff who is not a party to the note to have it resold.
It is true plaintiff avers that the debt “might have been paid by the sale in parcels,” but when this averment is considered with the other allegations that the property was actually offered in parcels and as a whole and the bid for the
Plaintiff offered a statement of what he would have sworn to at the trial; that he would have bid as much as $37,600 and that the property was worth' $40,000. His evidence also showed that Caesar’s agent was authorized to bid $45,000 for the land. If plaintiff was only able to bid $37,600 for the property it is clear he was not able to bid its real value and if Caesar was willing to bid $45,000 for it, he certainly would have gotten it, but if Caesar had bid the full amount of his note and the taxes ($48,000) how would plaintiff have been benefited ?
It is plain, we think, that in this second count plaintiff is seeking to constitute himself a trustee for Talbott who has not sought his aid, and that in this proceeding Talbott’s wrongs, if any, can not be righted. After a careful review of all the evidence we discover no taint of collusion or bad faith on the part of the trustee. He appears to have acted throughout with the utmost fairness and a desire to make the property bring its full value at the sale.
He pursued a course that left nothing to conjecture. He tested both plans and the result was that the property brought more in the lump than by parcels. It was his obvious duty to the debtor to accept the highest bid and his course is rather to be commended than condemned.
The judgment is affirmed.