Thornburg v. Jones

36 Mo. 514 | Mo. | 1865

Holmes, Judge,

delivered the opinion of the court.

The petition appears to be an action at law to recover damages. It is not framed as a bill for equitable relief, and contains no prayer for relief in equity. Most of the cases cited in support of it are cases .in equity, and have no proper application to the points, .raised here on demurrer. The petition shows no cause of action at law. /According to the allegations made in it, the sale by the trustee, was not made in conformity with the power to sell which was given in the deed of trust, and was utterly void. ) (Stine v. Wilkson, 10 Mo. 75.) The deed of trust being duly recorded was notice to all the world, and to this purchaser especially, and he was bound to see that the sale was made in pursuance of the power given, and in conformity with the trust, declared. His deed is not merely voidable in equity, but void at law, upon the facts shown. The case of Dozier v. Jerman, (30 Mo. 216,) on which the’ plaintiff relies, contains nothing to the purpose here. That action was grounded upon a breach of contract, or a violation of an express agreement between the plaintiff and the defendant, for which damages were claimed. The party had agreed with the plaintiff, who was unable to pay the note when due, to give an extension of six months’ time, but, in violation of his agreement, had directed the trustee to proceed and sell under the deed of trust; the sale was made in conformity with the trust and the power given therein, and, the other party being absent at the time, the property was sold at a sacrifice. There was no question but that the sale was entirely' valid, and conveyed the property absolutely to- the purchaser. The case is not at all in point here; and no case has been cited on behalf of the plaintiff that has any direct application to ■ the questions raised on this demurrer.

The case of Norman v. Hill (2 Patt. & Heath, 676) was a bill in equity, and distinctly recognized the principles here laid down. It was question of setting aside a deed for irregularity and unfairness in the sale; and it was held that the purchaser, having notice, takes the risk of any irregularity or unfairness in the sale, in a court of equity. / Where there has been a complete execution of .the power, and all essential conditions have been complied with, but there has been some irregularity, unfairness, fraud, or a mere breach of trust, there will doubtless be an adequate remedy in a court'oF equity, on a bill to set aside the SaTe'ánd to have the deed declared void’; and where the power has not been executed, or not in accordance with essential conditions, the sale and deed will be héld to be utterly void, both at law and in equity, j The suits at law which are referred to in that cáse appear to have been cases where there was some breach of trust only, and where the execution of the power to sell was such as to pass the legal title to the purchaser. So, also, in Barksdale v. Finney, (14 Gratt. 348,) which was a bill in equity. (3 White & Tud. Lead. Cas. in Eq., 498.)

Such is not the case here; and we know of no principle or authority on which a suit of this kind can be maintained for damages at law. We think the demurrer well taken.

Judgment affirmed.

Judge Wagner concurs;

Judge Lovelace absent.