Powers v. Kueckhoff

41 Mo. 425 | Mo. | 1867

Wagner, Judge,

delivered the opinion of the court.

The objection urged by the plaintiff in error, that judgment should have been rendered in his favor because there was no replication to his answer in the court, cannot be sustained. The proceeding was commenced under the practice act of 1855, and must be conducted in accordance with its provisions, and as the answer contained no counter-claim or set-off, no replication was necessary under that act.

The next point, and the principal one in this case, is as to whether the notice of sale given by the trustee was sufficient, or whether the title of the defendant in error is affected by means of any informality in it. The deed of trust empowers the ti’ustee to sell the premises, or any part thereof, “ at public vendue, to the highest bidder, at the court-house door in the town of Hillsboro, in said county (Jefferson), for cash-, first giving twenty days’ public notice of the time, terms and place of said sale, and of the property to be sold, by six advertisements put xxp in six public places in different parts of the county.” The notices put up by the trustee contained the following: “ Now at the request of the legal holder of said note, I will, on Monday, the 4th day of April, 1864, at the court-house door in the town of Hillsboro, and between the hours of nine o’clock in the forenooix and five o’clock in the afternoon of said day, sell said real estate for cash in hand for the purpose of paying said note.” It is xxow insisted that because the notices did not strictly and literally pursue the directions in the deed in designating Hillsboro as in Jefferson county, and stating that the px’operty would be sold at “ public vendue ” to the “ highest bidder,” the sale was void and no title passed under it to the grantee.

The greatest impartiality and good faith are required of trustees, and, as they are invested with the extraordinary power of transferring one man’s property to another, they must pursue their authority with precision to render their acts valid. The notice given by them should contain such facts as reasonably to apprise the public of the place, time and terms of sale, and the property to be sold. But mere omissions and inaccuracies in these respects, not calculated to mislead and working no prejudice, will not be regarded—Gray v. Shaw, 14 Mo. 341; Beattie v. Butler, 21 Mo. 313. We do not think that any injury could have resulted because the trustee in his notice omitted to describe Hillsboro as in Jefferson county. He had just stated that the land was situated in Jefferson county and that the sale would take place at the court-house door in the town of Hillsboro: it was well known to every body who read the notice that that town was the county seat, and that the court-house was there. The notice imparted the requisite information as to place. As to the failure to state that the sale would be at public vendue and to the highest bidder, we think that of itself is not sufficient to justify us in declaring the proceeding void. The notice stating that the property would be sold for cash at the court-house door would lead to the presumption that it was to be set up at public auction to the highest bidder. And although no legal intendment is made in favor of a sale by a trustee as in case of sheriff’s sales on execution, yet we are inclined to consider the acts of the trustee in this case sufficient until it be shown that injury resulted as a consequence. It has been held that notice of sale at “ city hall” or “merchants’ exchange” is good, as by usage such sales take place at the rotunda of those buildings; but to be good they must take place at the rotunda—Hornby v. Conner, 12 How. Prac. 490. Public policy as well as the stability of rules of property demand that sales and titles founded thereon should not be avoided, for slight and trivial reasons; but where the power has not been executed in accordance with essential conditions, the sale and deed will be held to be utterly void, both, at law and in equity—Stine v. Wilkson, 10 Mo. 75; Thornburg v. Jones, 36 Mo. 514; Jackson v. Clark, 7 Johns. 217; Miller v. Hull, 4 Denio, 104; King v. Buntz, 11 Barb. 192; Sherwood v. Reed, 7 Hill, 431; Dana v. Farrington, 4 Minn. 433.

The evidence is clearly insufficient to show that Powers was ever impressed with notice of the arrangement entered into between Craft and Maupin for the release of the deed of trust on the sixty acres of land till after he purchased at the trustee’s sale, and as the question was submitted to the court its finding will not be interfered with.

Judgment affirmed.

The other judges concur.