13 Mo. App. 533 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The petition states that Albert Ohnsorg is administrator, Catherine Rohn the widow, and Augusta the only child, of August Rohn, deceased; that on the 22d of February, 1876, August Rohn was the owner of a lot on Christy Avenue, in block 166 of the city of St. Louis, having forty feet front on the north side of Christy Avenue, and one hundred and forty-five feet deep ; that on said 2-2d of February, 1876, Rohn and wife executed a deed of trust to Arthur and John. F. Lee, recorded in book 538, page 442, to secure to Thomas T. Turner, trustee of Rebekah Briggs, the payment of seven promissory notes of even date, six of them for $450 each, payable in six, twelve, eighteen, twenty-four,' thirty, and thirty-six months after date, and one note for $9,000, payable three years after date, all bearing ten per cent interest after maturity; that the three interest notes payable in six, twelve, and eighteen months from date, were promptly paid by said Rohn ; that Rohn died in May, 1878 ; that in March, 1879, A. and J. F. Lee, trustees, advertised the said property for sale for the alleged reason that default had been made in the payment of the other notes, and attempted to sell, and did sell, the said property to said Turner, for the inadequate price of $6,000, and executed to him a trustee’s deed therefor; that at said sale only one bid was made for said property, namely, that made by said Turner; that no money passed by said Turner or said Briggs, or anyone else, to said trustees, or either of them, but that said Lees cancelled said notes for $450, due respectively in
The defendants, Thomas T. Turner, for himself and as trustee of Rebekah Briggs, John F. Lee, Jr., and Arthur Lee, answered this petition, saying: First, that they admitted the making, on the 22d of February, 1876, of the deed of trust referred to in the petition, but not made an exhibit thereof, by which A. Rohn secured the payment of a note
That; at no time was there any cause,'pretension, or excuse
Further, that Arthur and John F. Lee, Jr., are in nowise interested in said notes except as the attorneys of Turner. Deny every allegation in the petition not in this answer admitted, and pray a dissolution of the injunction.
A general replication was filed to this answer. Million answered, alleging that he was owner of the note for $9,000, and had instituted the suits mentioned in the petition under a contract with Turner and Lees, and ignored all the other allegations of the petition.
Excepting as to values and amounts, the testimony on
A temporary injunction had been granted on the filing of the'petition. A referee was appointed to ascertain the balance due on the principal and interest notes remaining unpaid, and to take an account of Turner’s receipts and necessary expenditures on the property while in his possession ; to compute, upon a basis prescribed, the amount remaining due of principal and interest on the notes at a specified date, and to report the results. The court ren
We are unable to find in the pleadings, or the proofs, or in both together, any proper case for equitablé interposition. Why should the newly advertised sale have been stopped by a temporary injunction, in the first instance ? If the advertisment, as alleged, was not framed in accordance with the requirements of the deed of trust, the whole proceeding would have been void on its face, the sale would have effected nothing, and the plaintiffs could not have been harmed. But we do not perceive that the advertisement failed of conformity with the terms of the deed. The only terms there expressed in this connection appear in the words, “ first giving thirty days’ notice of the time, terms, and place of said sale, and of the property to be sold, by advertisement published in some newspaper printed in the said city of St. Louis.” Each and every one of these specifications literally appears in the form and method of the advertisement, as shown in the evidence. The notice opens as follows: “Trustees’ sale. By virtue and under provisions of a deed of trust, dated the 22d day of February, 1876, and recorded in the office of the recorder of deeds of the city of St. Louis, and state of Missouri, in book 538, page 442, we, the undersigned
There is not the slightest foundation in this record for a suggestion that the omission of the grantor’s name from the notice was for a fraudulent purpose. The only testimony in that connection was the defendant Turner’s denial, in answer to a question on cross-examination, that any conversation had occurred to that effect. The suggestion of fraud, under such circumstances, reverses the established maxim, that fraud is never to be presumed, but must always be proved. The notice contained everything that was required by the terms of the deed of trust, or by any known rule of law. To assume that the omission of something else, whose expediency, or the reverse, is at least debatable, must be treated as ipso facto a fraud, is to thrust aside the best established traditions of both law and equity.
The plaintiffs charge that the Messrs. Lee have become interested in the trust debt, and are unfit persons to continue as trustees. The agreement between Turner and Million, and that between Million and the Lees, were founded on a mistake, in which all the parties shared, as to the vital fact which formed the common purpose of the contracts. It was supposed that the trust security was exhausted by the sale, and that other means must be employed for the collection of a balance remaining unpaid on the notes. It turned out that the trust security was in fact untouched, that it had furnished no credit upon the indebtedness, and that, instead of a balance to be collected by other means, there remained the entire principal debt, for which the trust property was bound. A sale under the trust might
Was it proper to enjoin the intended sale, because of the void sale previously made? The record of that sale, in the trustee’s deed, was a proclamation of its nullity. It declared upon its face that the sale was made upon only twenty days’ notice, when the recorded deed of trust, referred to as the source of the trustee’s authority, required an advertising for thirty days. No decree was needed to vacate it, nor could any be rendered, under the settled principles of equity jurisprudence. Story says: “But where the illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt,
The plaintiffs’ prayer for ah accounting is without proper foundation, and the circuit court erred in directing an account to be taken. From the earliest history of the proceeding for an account, either at law or in equity, it has been held an indispensable requisite that the complaining party should aver a refusal by the other, upon lawful demand, to render an account of matters within his knowledge, or to come to a just and fair settlement of joint or mutual interests between the parties. In equity, the action is an off-shoot from the jurisdiction to compel a discovery. It implies that the defendant is contumaciously and unfairly concealing or withholding from the plaintiffs’ rightful demand, and in defiance thereof, a disclosure, or an accounting, to which the plaintiff is entitled. In the plaintiffs’ petition here, there is not a single allegation of any such demand or refusal. The answer avers that the defendants have never been asked for an account, and that they have always been ready to render one, whenever demanded. Should they be forced into expensive litigation, and delay in the foreclosure to which they are entitled, because they
We summarize the several grounds upon which it is claimed that equitable interposition was proper in the present case : 1. Fraud in the method of advertising the intended sale under the deed of trust. We have shown that there was no departure from the terms of the deed, and no injury done, or even shown to be threatened. The pretence that the defendants proposed to derive some advantage from so framing the notice that it would escape the plaintiffs’ attention, is negatived by all the possibilities in the case. More than $12,000 remained due to defendant Turner on the trust debt. The plaintiffs were the administrator, the widow and the child of the deceased debtor, out of whose estate nothing could be made for the claim. The trust property was certainly not worth more than the amount of the debt, and, according to most of the testimony, was worth far less. What could the plaintiffs have done to save their equity of redemption ? Literally, nothing. How would the defendant Turner have profited by a sale of the property at a reduced price ? Whether it brought one dollar, or twelve thousand, the consequence would be the
The decree in this case presents some contradictory features that a little consideration might have avoided. It opens with an announcement that the court “ finds the issues for the plaintiffs,” and that the temporary injunction “be, and the same is, hereby made perpetual.” It then details its findings upon the issues specifically, every one of which is found for the defendants; not one for the plaintiffs. Upon the issue of indebtedness, it finds a balance due, somewhat larger than is stated by the defendants, instead of the “ only a small amount,” as averred by the plaintiffs. The other conclusions of fact are literally as averred or admitted in the defendants’ answer, and concerning which no issue was raised. The issue as to the personal fitness of the trustees to continue in the trust, is virtually found for the defendants, in the direction that the same trustees proceed to execute it. The injunction, instead of being perpetuated, is effectually dissolved by the order that, unless the debt be paid within two days, the trustees shall proceed
We may add a remark about the alleged contracts entered into by the defendants among themselves. Whatever may be the status of these agreements — ■whether they are abro
Finding no ground for equitable relief in the case made by the plaintiffs, we must reverse the judgment, and dismiss the petition, with dissolution of the injunction.