144 Mo. 433 | Mo. | 1898
Plaintiff being the owner of a farm f three hundred and twenty-six acres in Dallas county -on March 9, 1891, conveyed the same to one of the defendants, Leverett B. Sidway, as trustee, to secure the payment of two principal notes of $1,800 each, of even date therewith, payable on the first day of June,
The petition for grounds of relief, sets out, among other things, in substance, after reciting the facts in relation to the plaintiff’s ownership of the land and the execution of the notes and deed of trust under consideration, that notwithstanding the powers of the appointment of a successor did not lie in Leverett B. Sidway, yet he attempted the exercise of such power, and without any legal authority to do so, by an instrument in writing, appointed defendant Childers as' trustee to execute the trust and powers in the deed of trust specified; that in April, 1894, said Childers, presuming to act under the powers contained in the deed of trust, sold the premises in question and defendant Kroff became the purchaser thereof for the sum of $4,176, and took from the defendant Childers a trustee’s deed conveying the real estate to him, which deed is duly recorded in the recorder’s office in Dallas county. The petition further alleges that the said premises are reasonably worth $10,000; that in pursuance of a combination to cheat and defraud plaintiff out of said premises, defendant Kroff instituted five ejectment suits against plaintiff and his tenants for the possession of said premises, and notified him that he would apply for the appointment of a receiver, thereby harassing and annoying* plaintiff until he was finally induced to lease said premises from said Kroff and recognize him as his landlord; that at the time of the execution of the lease plaintiff was not aware that the deed of appointment and sale thereunder were not made in accordance with the power given in the deed of trust, or that the alleged combination existed between Childers and Kroff. The petition further charges that on the day of the sale, in pursuance of certain negotiations between the plaintiff
The defendants Sidway and Childers answered, averring the ownership of the land in plaintiff, the execution of the mortgage, and affirming the regularity of the sale, but denying each and every other allegation in the petition contained. The answer' of the defendant Kroff, after denying the other allegations of the petition, admits.that plaintiff was the owner of the premises in question, and executed the deed of trust aforesaid upon same, and averred, in substance, that after the real estate was advertised for sale by the acting trustee, Childers, plaintiff actively induced him and others to bid on the land at the sale, and that during the progress of the sale plaintiff publicly invited defendant and others to bid on said land, assuring all bidders that the purchaser at such sale would acquire a perfect title to said land; .that he was induced to bid at the sale and buy the land by such conduct and acts on the part of the plaintiff; and that he is now estopped from asserting or claiming any right, title or interest in the land as against him, the
The evidence utterly fails to show any fraud, collusion or combination between Childers and Kroff looking to a sale of the mortgaged premises under the deed of trust whereby Childers should have any interest therein whatever. It was publicly stated by Childers and fully understood by those present at the sale, that Sidway, Bogue & Company would loan the principal of the mortgage indebtedness to any responsible party who might buy in the property, and take the premises for security, provided the purchaser at the sale would pay the accrued interest upon the principal sum loaned and all the expenses 'of the sale, and with this understanding Kroff bid the land in at the sale and gave his notes for the sum of $3,600, and secured the payment
The allegation in the petition with respect to the agreement between plaintiff and Charles Kroff, the father of the defendant Kroff, that the latter should bid the property in at the trustee’s sale and afterward convey the homestead, consisting of the seventeen-acre tract, to plaintiff’s wife, thereby lulling plaintiff into security and causing him to abstain from looking up bidders to make the property bring its full market value, is not sustained by the evidence. On the contrary the record shows that on the morning of the day on which the sale took place, Kroff and his father went out to look at the farm with the view of bidding on it at the ensuing trustee’s sale, and while enroute met plaintiff on his way to Buffalo to attend the sale. Upon informing plaintiff that they were going out to examine the farm with the view of bidding in the land at the sale, he expressed satisfaction and referred them to his son-in-law Yarborough, saying that he was at home and would show them around. On their return to Buffalo, in the course of a conversation between plaintiff and Kroff’s father relative to the purchase of the land at the trustee’s sale, the proposition was made to Charles Kroff, in substance, that the land should be purchased at the sale for his son, and trustee’s deed taken to him for the entire premises, whereupon Kroff would convey the seventeen-acre tract heretofore mentioned to plaintiff’s wife, in consideration of $250, to be paid when plaintiff and his wife were able. Defendant Kroff, however, declined to buy or take the property under such an arrangement, and his father notified plaintiff after conferring with the son, that he would not take the place
The plaintiff’s main contention is that Leverett B. Sidway, trustee named in the deed of trust, had no power, under the circumstances disclosed by the record, to appoint Childers to make the sale, and that the appointment of Childers, as trustee in place of Sidway, was unauthorized by the deed of trust and void. It appears from the record at the time the deed of trust was executed and the trustee’s sale thereunder took place, Leverett B. Sidway was engaged in the business of placing real estate loans on farm lands in Missouri and other western States for the American Trust and Agency Company of Edinburg, Scotland (a corporation under the laws of Great Britain), and other investors, and negotiating and selling loans already made on farm lands to such investors as desired to handle that class of securities. After a loan was made, Sidway and
Shortly after the maturity of the interest coupon notes for 1894, having received notice from the collector of Dallas county that suit would be brought for delinquent taxes .against the land in controversy, unless paid forthwith, Sidway directed Childers to investigate the matter and ascertain what arrangements could be made towards paying or securing the accrued interest; proposing, in the event adequate security could be obtained, to extend the time for paying the interest coupons, and that he would advance the money with which to pay the taxes. On being informed of plaintiff’s inability to pay or secure either
But it is objected by counsel for appellant that it was necessary for Leverett B. Sidway to resign before the appointment of his successor could be made. ' The appointment of Childers clearly operated as such resignation, and if not, the suggestion of the general manager, Mr. Martin, may be treated as a request to resign in favor of some one who could more easily execute the trust. By the terms of the instrument appointing Childers, Sidway expressly abrogates his power thereunder and confers the same upon the trustee so appointed, and the court was amply war
Apart from these considerations, and even though the defendant Childers had no authority under the deed of trust to make the sale, the evidence shows that the plaintiff was present at the sale; gave his assent thereto, encouraged parties to bid, telling them that the highest bidder was his best friend; made several bids himself; and afterward in confirmation and acquiescence in the sale, attorned to and leased a portion of the premises from the purchaser at the trustee’s sale, paying rent therefor; stood by and saw him improve the place and pay taxes thereon, with full knowledge that $576 of the amount bid at the sale by Kroff had been paid to the acting trustee in cash, and the remaining sum of
The defendant Childers testified that before the sale of the land, the plaintiff came to him and asked that it be sold in a particular way; that when he began the sale he, Childers, asked if any person present desired the land sold in any particular way, and that again the plaintiff told him he would like to have it offered for sale in this way, and handed him a memorandum or plat of the land indicating the manner. The defendant Childers says that he then notified all parties present at the sale “that the lánd would be sold in parcels, and then put up as a whole, and whichever way it brought the most, it would be sold; that during the offer of the land in parcels he (the plaintiff) had bid on some of it, and said to the crowd, “GS-entlemen, don’t stand back on my account; the man who makes the land bring the most money is my best friend.”
It is further contended that defendant Kroff bought the property at a greatly inadequate price. While there was evidence tending to show the property was worth $6,000 or $8,000, there was other testimony that at the time of the sale the property was not worth much, if any, in excess of the price it sold for. Although there were quite a number of parties at the sale, it does not appear that any higher price could have been obtained for it at that time, and that every effort seemed to have been made by the trustee to make the land bring the highest possible price. The property having been advertised and sold without any unfairness or oppression and in compliance with the provisions of the deed of trust, and by the substituted trustee appointed in the manner designated and agreed upon between the parties to the deed, mere inadequacy of the price is not of itself Sufficient to justify setting aside a sale by the trustee. It is further claimed by plaintiff as ground for redemption that the growing •nursery stock was reserved from the sale by the trustee. Without entering upon an extended discussion of the evidence on that issue, it suffices to say that when the trustee came to offer the land for sale it was announced by persons holding separate mortgages against the nursery stock that the latter would not pass by the trustee’s sale. This announcement, however, was not assented to by the trustee. The evidence to our minds very satisfactorily established the fact that when such
The point made by plaintiff, based on the action of the circuit court in admitting a letter press copy of a certain letter, written by Sidway to plaintiff, to be read in evidence, without notice to produce the original, may be disposed of with the remark that it has been uniformly held by this court that in proceedings in equity we do not pass on exceptions to the admission or rejection of evidence, when all the evidence is contained in the record, as we can consider what is competent and exclude what is incompetent in our findings. Padley v. Neill, 134 Mo. 372.
The judgment of the circuit court is sustained..