57 Mo. App. 50 | Mo. Ct. App. | 1894
— The plaintiff sold certain real estate to the defendant, subject to an incumbrance of $750 which was evidenced by the plaintiff’s notes secured by deed of trust on the premises conveyed. By the terms of the sale the defendant assumed the payment of this incumbrance as part of the purchase money for the land conveyed to him. When the notes matured, the defendant failed to pay them. The property was duly advertised for sale under the deed of trust, and sold by the sheriff as trustee at such sale to one Bone for $25, such sale realizing a net balance of $6, which was applied as a credit on the notes. Bone afterwards conveyed the property to one Cox, who thereafter conveyed it to an innocent third person for $700. The plaintiff, claiming that he was compelled to pay the notes, and did in fact pay them, instituted the present action against the defendant on the promise contained in the deed first hereinabove mentioned, and recovered judgment for the balance of the notes with interest. From that judgment the defendant prosecutes the present appeal, and he assigns for error that under the pleadings and evidence the judgment is unwarranted.
The defendant’s answer set up the following defense to the plaintiff’s cause of action: That the sale of land under the deed of trust was the result of a fraudulent combination between the plaintiff and Bone, having for its object the purchase of the land for a nominal consideration by Bone in the interests of plain
There was evidence at the trial substantiating the fact that Bone bid in the land at the plaintiff’s request; that his bid was the only bid made for the land at the trustee’s sale, and that the margin between the purchase price paid by Bone and the amount at which the land subsequently sold was divided between Bone and the plaintiff. There was no evidence, however, that any one had been induced or deterred from attending the trustee’s sale, which, outside of the small amount realized thereby, was, as far as the evidence shows, free from suspicion. The beneficiary, who was a witness for the defendant, testified that he did not attend the sale, because he did not wish to buy the land; that, when he bought these notes, he relied upon Milner’s promise to pay them, and not upon the land; that no one spoke to him or tried to influence him not to attend the sale; and that he advertised the land for sále on his own motion, and sent a copy of the advertisement to the defendant’s address. There was also evidence that the defendant did not know of the trustee’s sale until after it had taken place; that he was temporarily absent from the state when it did take place, and never saw the advertisement.
There can be no doubt under the evidence that the land was sold at the trustee’s sale for a grossly inadequate consideration. Grross inadequacy of price, how
The appellant has referred us to a number of cases, such as Howard v. Ames, 3 Metc. 308, 311, which hold that the mortgagee, who sells land under a power to sell it and apply the proceeds to the payment of the mortgage debt, is a trustee for the debtor, and is bound to adopt all reasonable modes of proceeding to render the sale more beneficial to the mortgagee.. But these cases have no bearing on the present inquiry. The beneficiary in a deed of trust is no trustee for his
■ This case, therefore, presents upon the evidence only these features: The defendant, owing to his own negligence, has suffered a loss, and the plaintiff without any fraud on his part has gained a corresponding advantage. We are aware of no principle of law, which would compel the plaintiff to account to the defendant for the advantage thus gained. As a proposition of law the plaintiff’s right of recovery is clear upon the facts stated in his petition. Rogers v. Gosnell, 51 Mo. 466; Cress v. Blodgett, 64 Mo. 449.
We may add that no instructions were ashed or given in this case; hence, even if there had been some evidence of fraud on plaintiff’s part, the weight of that evidence would have been for the trier of the facts. The action is one for the recovery of money only, and hence triable by jury. Revised Statutes, 1889, section 2131. The fact, that fraud was interposed as a defense, does not change the forum. Kitchen v. Railroad, 59 Mo. 514; Earl v. Hart, 89 Mo. 263.
the judgment is affirmed.