80 W. Va. 761 | W. Va. | 1917
The plaintiff needing the sum of three thousand dollars for the purpose of completing a building on a lot owned by her in the town of Bramwell, applied to the defendant L. J. Holland to secure a loan of that amount for her. For his services she agreed to pay him five per cent, of the amount desired, or one hundred and fifty dollars. ■ The defendants Kirkpatrick & Howard, of Lynchburg, Virginia, were applied to by Holland, and they secured the money from one of their clients, Holland dividing the fee of one hundred and fifty dollars with them. The plaintiff executed a deed of trust dated the 4th day of August, 1911, to secure this loan which was divided into three bonds: one for five hundred dollars, due at one year from date; one for one thousand dollars, due at two years from date; and one for fifteen hundred dollars, due at three years from date. The. money, less the one hundred and fifty dollars agreed to be paid to Holland, was duly paid over to the plaintiff, and the bonds were-delivered to a man by the name of Hutter who furnished the money. When the building was completed plaintiff found that she did not have enough money to pay for the materials and labor which had been used in the same, and to secure this remaining indebtedness she executed a deed of trust, on the 27th day of January, 1912, conveying the property to L. J. Holland, trustee. It. appears that when the first bond of five hundred dollars became due it was not paid, but arrangements were made to carry it, and the interest was paid thereon: When the second bond of one thousand dollars fell due it was not paid, but like arrangements were made to carry it, together with the first five hundred dollar bond, until the last one of fifteen hundred dollars became due, making the whole three thousand dollars fall due at the same time, to-wit, on the 4th day of August, 1914. When this time arrived the plaintiff was still unable to pay the debt and after considerable negotiation the time of payment was extended six months, to-wit, until the 4th day of February, 1915. She did not then pay the debt, and after considerable correspondence and negotiation between her and Kirkpatrick & Howard they, on the 16th day of March, 1915, advertised the property to be sold on the
The first ground assigned for setting aside the sale is that L. J. Holland, who took the acknowledgment to the deed of trust executed by plaintiff and her husband to Kirkpatrick & Howard, trustees, to secure the three thousand dollar debt, was so interested because he received the sum of one hundred and fifty dolars for procuring this loan, that the acknowledgment taken by him was void, and the acknowledgment being void, and she being a married woman, the deed executed by her was void. Many authorities are cited to the effect that neither- the grantee in a deed of trust nor the creditor secured thereby is competent to take the acknowledgment, and also that one interested in the transaction is likewise incompetent. But it is contended by the defendant that Holland had no such interest. The only connection that he had with this transaction, so far as the record discloses, is that at the plaintiff’s solicitation he procured this loan for her, for which he was paid the sum of one hundred and fifty dollars, which sum he divided with Kirkpatrick & Howard who assisted him in securing the money for the plaintiff. It does not appear that he was in any wise interested in the bonds executed by Mrs. Pence, or in - her real estate. It will make no difference to him from a pecuniary point of view whether the deed of trust is upheld, or whether it is overthrown. Manifestly the sort of interest referred to by the authorities is one that would be affected by the deed of trust, that is, such an in
In 1 Corp. Jur. 804, referring to the disqualification of an officer to take an acknowledgment because of interest, it is said: “In order to disqualify an officer he must have a' direct pecuniary interest in the consideration for the instrument, or in upholding such instrument after it is executed.” This, we think, is the true test to be applied in such cases. Holland had no such interest.-
The next reason assigned for setting aside the sale is that Kirkpatrick & Howard, who were trustees in the deed of trust given to secure the three thousand dollar debt, were interested parties. It is charged that in fact they were the beneficiaries in the deed of trust, and if not the beneficiaries that they were so connected with the beneficiary as to make any sale made by them under the deed of trust void. A careful review of the evidence discloses the facts, in so far as they affect the interest of Kirkpatrick & Howard, to be that they are attorneys-at-law residing in the city of Lynchburg, Virginia, and that they secure loans' of money for parties desiring the same from clients of theirs having money to invest; that on this occasion they secured this three thousand dollar loan for the plaintiff from a client of theirs by the name of Hutter; that the bonds were turned over to Hutter and the money received from him and turned over to the plaintiff; that at the expiration of the three years Hutter would carry the loan no longer; that the plaintiff was unable to pay the same at that time, and Kirkpatrick & Howard, having some funds of other ■ clients to invest, took up these bonds from Hutter with such funds, and gave Mrs. Pence a further extension of time; that after these bonds had been so held for sometime they were again negotiated through the defendants
Plaintiff also contends that the deed of trust is void for want of consideration and for want of mutuality. "We are at a loss to understand the basis for this claim. She avers in her bill that she executed the three bonds; that she executed the deed of trust to secure the payment thereof; and that she received the money for the bonds. Certainly the receipt of the money is sufficient consideration for the transfer of the bonds. The fact that the bonds and the deed of trust were executed before the money was paid over to the plaintiff can make no difference. The transaction was not completed until the delivery of the bonds and the deed of trust and the receipt of the money, and when these bonds were delivered and the money paid'they became valid and binding obligations of the plaintiff. The same is true of the deed of trust.
It is further contended that the sale is void and should be set aside because the trustees failed to advertise the property in accordance with the terms of the deeds of trust. The objection is made to the advertisements that they do not sufficiently describe the buildings located iipon the real estate, and to the advertisement made by Holland, trustee, that it does not correctly state the terms of sale. The advertisement of Kirkpatrick & Howard, trustees, describes the property by metes and bounds, gives the number of the lot upon the plat of the town of Bramwell, and reference to the deed book and the page in which the same is recorded; and the only point made against this is that it should have stated that there was a building on the lot and the character of such building. The same criticism is made of the advertisement under the Holland deed of trust. We do not think there is merit in this contention. Both of the advertisements clearly and explicitly inform prospective purchasers what real estate would be sold, and by an examination of the same the purchaser would have observed the house on the lot and the character of it. But it is asserted that the trustees had some sinister purpose in not indicating in the advertisement that there was a house upon the premises, and the character of the house. We do not think such an inference can be drawn from this fact, but even if it could it is overthrown by the proof that the trustees prepared large posters and had them put up at numerous places in the locality, fully informing prospective bidders of the property to be sold, the character of the house theron, and giving other information having a tendency to convey the idea that it- was an attractive and desirable piece of property. The fact that the advertisement under the Holland deed of trust did not follow the terms of sale stated in the
It is objected that this sale was in fact made for cash when, according to the terms of the deed of trust and the advertisement thereunder, it was to have been made for sufficient cash to pay off the debts secured by the deed of trust, and on time as to the balance. This'is fully explained by the evidence. It appears that after the sale had begun one of the bidders inquired of the trustee, Kirkpatrick, if all of the purchase money might be paid in cash, provided he became the purchaser at such sale; that the sale was suspended for a sufficient time for Mr. Kirkpatrick to communicate with Mrs. Pence who was in the building, in front of which the sale was being made, and she agreed that any purchaser who desired might pay all of the purchase money in cash instead of paying in accordance with the terms advertised; and it was because of this agreement that the purchaser was allowed to pay the entire purchase money on the day of sale.arid receive a deed for the property. The plaintiff does not deny that she assented to this arrangement, and she cannot claim that she was prejudiced thereby for the reason that the purchaser was under no obligation to pay cash on the day of sale. He was only permitted to do so in case he preferred to "close the sale in thát way, so that it cannot be said that the property brought any less money, for any purchaser who desired to pay more for it on the terms prescribed in the
Another contention made by the plaintiff is that this was a joint sale made by Kirkpatrick & Howard under the deed of trust executed to them, and by Holland, trustee, under the deed of trust executed to him. It is true that the property was advertised for sale under both of these deeds of trust, the Holland sale advertised to take place thirty minutes after the sale under the Kirkpatrick & Howard deed. What we have already said sufficiently shows the only effect that could arise from the advertisement under the Holland deed of trust. All of the interest in the real estate, both legal and equitable, passed to the purchaser upon the foreclosure of the Kirkpatrick & Howard trust deed, and the fact that Holland'joined in the sale, and joined in the deed from the purchaser,, added nothing to it, and would, perhaps, have no bther effect than to indicate that the deed of trust in which he was trustee had been executed as to the surplus; otherwise it might have been necessary for the beneficiaries therein to go into a court of equity and enjoin the trustees Kirkpatrick & Howard from paying over the surplus to Mrs. Pence, and have the application thereof directed to the satisfaction of their lien. The case of Shears v. Traders Building Association, 58 W. Va. 665, is relied upon by the plaintiff to support her contention that this sale was void. In that case the same creditor had two debts against the same debtor, one debt secured by a deed of trust on one piece of property, and the other debt secured by a deed of trust on another piece of property. These deeds of trust were foreclosed and the two pieces of property sold jointly, and the fund thus arising applied to-the discharge of the total of the two debts. The court simply held in that case that inasmuch as the security of each of the pieces of property was for the particular'debt, that the property must be sold in such way as to see that no part of the security for one of the debts was applied to the payment of the other. It might be that one of the properties would not bring the secured debt, and that the other would bring in excess of the debt secured by it, but the combined proceeds
It is also contended that Kirkpatrick, the trustee who acted in the execution of the deed of trust made to himself and Howard, was guilty of improper conduct, that he did not act impartially between the parties. It is insisted that he was harsh with the plaintiff in communicating with her on numbers of occasions, and it is particularly charged against him that it was wrong for him to refuse to continue the sale and give the plaintiff further time within which to raise the money.- A large amount of correspondence is introduced into the record with the deposition of Kirkpatrick, and from this correspondence his disposition toward the plaintiff clearly •appears. This correspondence indicates that he, at Mrs. Pence’s solicitation, procured an extension of time for the payment of this debt from August 4th to February 4th. He advised her at that time that he would not be able to procure -any further extension of time; that the parties holding the debt would insist on having their money on the 4th of February, and he urged her to make arrangements at once so that when the day of reckoning arrived there would be no ■question about her being able to pay off the debt. She wrote Mm on more than one occasion advising him that she had Iher arrangements made to secure the money at the time it was due, but suggesting that she would like to have him secure a further extension of time for the payment of the loan. To these letters he replied that the holders of the debt were insistent that their money should be paid on the 4th of February, and urged her not to wait until that time to secure the money. When the fourth of February arrived the bonds were not paid. He wrote her then that the holders of the bonds were demanding that he advertise the property for' sale, and that he would have to do so unless they were promptly liquidated. The plaintiff advised him that she had
It is also contended that the trustee before making sale should have filed a bill in equity and had the liens against this property ascertained. There is no duty upon the trustee under a deed of trust to invoke the aid of a court of equity
Complaint is made that the price paid for this property is so grossly inadequate that the sale should be set aside for that reason. It is quite true that when the price paid for property at a trustee’s sale is so grossly inadequate as to shock the conscience of a chancellor, it will be set aside; and it is likewise true that where such inadequacy is accompanied by improper conduct or bad faith upon the part of the trustee, the sale will be more closely scrutinized than if inadequacy of price alone were relied upon. But we find nothing in this case indicating unfairness or bad faith or improper conduct on the part of the trustees which can be said to have eontrib-^ uted to the inadequacy of price, if there be such. The plaintiff and two of her daughters testify that the property is worth twenty thousand dollars. There is scarcely any corroboration of this statement. The great preponderance of the evidence of those well acquainted with the property, and with the value of property in that neighborhood, both from
We find no error in the decree complained of and the same is affirmed.
Affirmed.