On the first of August, 1891, F. M. Worrell, who was then the owner of the west half of the northeast quarter and the east half of the northwest quarter of section 12, township 55, range 16, in Douglas county, executed a deed of trust conveying said real estate to A. O. Eice, trustee, to secure the payment of his note of the same date, payable one year after date, for the sum of $60 with interest to one E. D. Pennington. Afterward, on the first of February, 1892, the said Worrell by deed of that date, and recorded on the same day subject to said deed of trust, conveyed said real estate to plaintiff E. F. Montgomery and one Yaughan, who afterward, on the ninth of February, 1892, executed a deed of trust of that date and recorded the same day conveying said real estate, together with other lands, to one Elineline as trustee, to secure certain promissory notes payable to plaintiff, Thomas M. Brown, which notes were afterward transferred by said Brown to the-plaintiff, the Dallas county bank. Afterward, on third of September, 1892, the said Eice, trustee as aforesaid, in pursuance of the power granted in said first deed of trust, sold said real estate at public auction, at Ava, the county seat of said county, and the defendant, John F. Miller, became the purchaser thereof for the sum of $125, paid the purchase money, and immediately received the trustee’s deed therefor, which was on the same day filed for record at 11:30 a. m.
Afterward, the said plaintiffs instituted this suit to
After a very careful examination of all the evidence in this case we find these salient facts established thereby: That the sale took place about 11 o’clock in the forenoon; that the land was sold in bulk; that it was worth between $300 and $100; that the usual hour' for making such sales in Ava was in the afternoon, between 1 and '2 o’clock; that one of the forties, as testified to by the trustee himself, was worth more than enough to have satisfied the trust debt, interest and costs, all of which facts weré known, or ought to have been known, to the defendant, as well as the extent of plaintiff’s interest in the property, which appeared by their deeds of record; that plaintiffs had no notice of the sale, and that Burkhead was their attorney, whose duty it was to look after their interest in such sale, or notify them thereof, and that he failed to do so; that Kice, the trustee, sustained such relations to the plaintiff and to the property that he ought to/have notified them of the sale, and that the sale was made by him in the forenoon at the request of the agent of the beneficiary in the deed of trust.