45 Mo. 444 | Mo. | 1870
delivered the opinion of the court.
This suit was brought to recover the amount of the defendant’s bid at an auction sale under a deed of trust. The plaintiff was the trustee in the deed, and acted as his own auctioneer at the sale. The property was struck off to the defendant as the best bidder, and the plaintiff thereupon entered on the margin of the paper containing the advertised notice, and contiguous thereto, a memorandum of the sale, thus : “ Sold to Herman David, for five hundred dollars.” -The notice described the property and contained a statement of the terms of sale.
The defendant resists the collection upon the ground that the contract of sale was within the statute of frauds (Gen. Stat. 1865, p. 106, § -5), and that it was therefore invalid. It is insisted that the plaintiff, being a party to the sale, and a necessary party to the suit to recover the purchase money, was incompetent to act in the transaction as the agent of the buyer; and it is therefore insisted that the memorandum of the sale made by
The trustee may be the father or other near relative of the beneficiary, and if one trustee may act in the triple capacity of vendor, auctioneer, and agent of the buyer, why not all ? Where is the line of distinction to be drawn between different trustees or classes of trustees ? We are referred to no decided case that adopts the principle contended for by the plaintiff in this suit. The nearest approach to it is found in the case of Wiley v. Roberts, 27 Mo. 388, and Stewart v. Garvin, 31 Mo. 36; where it is held that a sheriff, in selling lands under an order of court in proceedings for partition, is a competent agent of the parties to make a binding memorandum of the sales made by him; that a proper memorandum made by him binds the parties and withdraws the contract of sale froto the influence of the statute of frauds. But the sheriff in such cases acts simply in the execution of a judicial power of sale, and not in strictness as a trustee. No title is vested in him. He acts merely as the instrument of the law in effecting the sale and conveyance. He is a public officer, and holds his position under the provisions of law, and not as the mere appointee of private parties. His public position and responsibility afford some security at least that his public duties
The judgment of the District Court is reversed and the cause remanded.