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lot one in block five in Hall's addition to ow, a life estate, or an estate to be held and the city of St. Joseph, Missouri, hereby de- enjoyed by her during her widowhood, and vising the remainder over to him upon the the remainder in fee to his infant son. That remarrying or death of his mother, Jennie his said infant son, the only child of Robert Wall. Seventh. Should my son, William Wall and Jennie Wall, his wife, died when Wall, die before maturity, and should my about the age of three years, and before this said wife remarry before the death of my suit was instituted; and that, upon his said son, it is my will that my brother, death, the remainder in fee of said lot passJohn Wall, and our mother, Margaret Wall, ed to and vested in said Jennie Wall by inshall take and have possession of said lot heritance (Jennie Wall is still unmarried), one in block five, above mentioned; and I so that, when this suit was instituted, the hereby devise the same to them in equal said Jennie Wall was, and now is, the owner parts, upon the happening of the two last absolute in fee simple of the aforesaid lot events, together witb the full and complete described in said petition and herein above title thereto forever.” William Wall, the described. That the defendants herein, othonly child of the testator and of Jennie er than Jennie Wall, have no right, title, oi Wall, aged three years, died before suit interest in or to said lot, or any part therebrought, and Jennie Wall has not remarried. of, but that they claim an interest therein. The testator's estate has been duly adminis- It is therefore ordered, adjudged, and detered and finally settled. Plaintiff is the as creed that the absolute title in fee simple signee of the tax bill. In their pleadings, to said lot be, and the same is hereby, vestthe appealing defendants, Margaret Wall ed in said Jennie Wall, to the exclusion of and John Wall, claimed that Jennie Wall the other defendants in this case. It is fur. was only the owner of a life estate in the ther ordered, adjudged, and decreed that lot, and they of the remainder in fee, while plaintiff recover, in accordance with the Jennie Wall claimed that she herself was judgment and decree heretofore rendered in the owner in fee of the lot in question. Aft- this case, the sum of one hundred and eigher hearing the evidence in the case, the low- ty-eight dollars and twenty cents ($188.20). er court found and decreed that Jennie Wall the amount of said special tax bill sued on, was entitled to but a life estate in the prem- to be levied upon said lot; and that tho ises, and Margaret Wall and John Wall to same is a lien upon said lot; and that the the remainder therein in fee.
said lot be sold, together with all the right, Motions for new trials were filed by the ap- claim, and interest of all the defendants pealing defendants, Margaret and John therein, to satisfy said sum, together with Wall, and by Jennie Wall as well, which mo- interest on said sum of one hundred and tions went over to the next term, at which eighty-eight dollars and twenty cents ($188.20) time, all parties being present, the lower from the date that the decree was rendered court, on the motion of Jennie Wall, and in this case, at the rate of 15 per centper against the objection of the appealing de- annum; and that the plaintiff have special fendants, entered the following finding and execution in accordance with this deeree; decree, to wit: “Eliza McGurry, Plaintiff, and it is further ordered that plaintiff recov. v. Margaret Wall et al., Defendants. Now, er her costs in this behalf expended.” From at this time, come the parties to this suit, this finding and decree, Margaret Wall and and the motion of the defendant Jennie John Wall have appealed to this court. Wall in this case to set aside the finding, verdict, judgment, and decree rendered in
H. S. Kelley, for appellants. Samuel S. the above-entitled cause, in so far as it in
Shull, for respondent Wall. James W. any way or in any degree adjudged or de.
Boyd, for respondent McGurry. creed that her title, estate, and interest in and to the lot described in the petition is SHERWOOD, J. (after stating the facts). any other or less than an absolute ownership | 1. The validity of the special tax bill will thereof in fee simple, heretofore taken up by not be discussed, because the appealing dethe court, is now further considered and sus- fendants, in one of their declarations of law, tained, and the decree rendered in this case to wit, “that said Jennie is justly and legalis now hereby changed and modified so as ly bound to pay said tax bill sued on, and to be as follows, to wit: First. The court her interest or estate in said lot should be finds that the plaintiff is the owner and first subjected to the payment of the same," holder by assignment of the special tax bill admit thereby the legal validity of said bill, sued on, amounting to one hundred and and, after having tried the case on that theeighty-eight dollars and twenty cents ($188.- ory, will not be permitted now to change 20), and that the same is a lien on lot one front, and contest the validity of that which in block five in Hall's second addition to the they had theretofore admitted. If the tax city of St. Joseph, Buchanan county, Mis- bill was such that Jennie was justly and lesouri. Second. That Robert Wall, deceased, gally bound to pay it, then, of course, its died seised of an estate in fee simple in and mere validity could not be questioned as to to said lot; and that, under and by his last any interest in remainder in said lot; but. will and testament, he devised to Jennie in speaking in this general way, it is not inWall, said defendant, who is now his wid- tended to make any ruling as to what effect such a bill would have as to a remainder in W. C. Marshall, for appellant. R. B fee in said lot.
Haughton, for respondents. 2. The lower court, in consequence of the motions for a new trial filed and continued GANTT, P. J. On the 12th day of Septemto the subsequent term, had a perfect right ber, 1892, an alternative writ of mandamus to modify the former finding and decree, as was issued by Judge Daniel Dillon, one of it did do, as all parties were present, and the judges of the circuit court of St. Louis, the whole matter was still in the breast of to Hon. Edward A. Noonan, the mayor of the court. It is not pretended that there the city of St. Louis, upon the petition of was any new evidence in the case which
Henry Collett and Gerardo Barricelli, requirwould have changed the result, and, this be- ing said Noonan to revoke, cancel, and anpal ing true, the proper course in this regard certain written permits issued by him to Lorwas pursued.
enzo Palmisano et al., purporting to allow 3. The main feature of this litigation, how. them to occupy places in the public streets ever, is the proper construction of the will. of St. Louis with their fruit wagons within Indeed, it may be said that this was and the district and within the hours prohibited is the only litigated point in the controversy. by Ordinance No. 14,084, and to stop and ofThere are two grounds on which the decree fer for sale and to make sales of their fruits, entered by the lower court may well rest: wares, and merchandise therein, within said First. It will readily be seen that Margaret prohibited hours. Thereafter, on October 4, Wall and John Wall were, by the seventh 1892, the respondent Noonan filed his return, clause of the will, precluded from ever ob- in the nature of a demurrer, which was taining any title to the premises, except up- heard on November 15, 1892, and his return on the happening of two events, to wit, the adjudged insufficient, and a peremptory writ death of William Wall before maturity (an of mandamus was awarded on November 22, event which has already occurred), and the
1892, the respondent having declined te remarriage of Jennie Wall before the death
plead further. On November 29, 1892, the of the son (an event which did not happen, mayor filed his affidavit for appeal to this and which therefore can never happen). As court, and it was allowed, but no superse the taking of the estate in remainder by
deas bond was given and no stay granted. Margaret and John Wall absolutely depend- Afterwards, on January 7, 1893, a transcript ed on the occurrence of both these events,
of the proceedings was filed in this court, and as they both have never taken place, and a bond for appeal tendered on January and never can do so, it is needless to say 12, 1893, which was approved and directed they took nothing by the will. Second. But
to be filed with the clerk of the circuit court; as William Wall died in infancy, and as he
but it appears that, by an oversight, the bond had no brothers or sisters, his father being
was lodged with the clerk of this court. Aftdead, his mother inherited his estate (Rev.
erwards the relators filed affidavits in this St. 1889, $ 4465; Mourning v. Mining Co., 99 court showing that, in obedience to the perMo. 320, 12 S. W. 884), which would have
emptory writ, the mayor, on December 29, been, had he survived his mother or bad she
1892, canceled the said permits issued by remarried, he living, an estate in remainder,
him to said parties. On April 10, 1894, the according to the express terms of the will.
relators moved this court to dismiss the apTherefore, decree affirmed. All concur.
peal herein, because this court had no juris diction over said appeal, under the constitu
tion of this state. Counsel have also filed STATE ex rel. BARRICELLI et al. y. NOO
briefs covering various other questions in
the cause. NAN, Mayor. (Supreme Court of Missouri, Division No. 2.
Upon consideration, we are of the opinion June 12, 1891.)
that the motion to dismiss the appeal must
be sustained. This court has no jurisdiction SUPREME COURT-APPELLATE JURISDICTION.
of this appeal. It does not fall within any The supreme court has no jurisdiction of an appeal from the circuit court in proceedings
of the classes in which an appeal is granted for mandamus to a mayor to annul permits to to this court, either as to the amount of the fruit sellers to occupy space in the streets, in
controversy, the character of the litigation, violation of an ordinance, the amount in controversy being less than $2,500, and no constitu
or the parties litigant. Const. art. 6, § 12; tional, federai, nor political question nor state Amend. 1884, § 5. It follows, also, that the officer being involved. Const. art. 6, § 12. order of supersedeas allowed in this court Appeal from St. Louis circuit court.
was improvidently granted; and said order Mandamus, on relation of Gerardo Barri
and the order approving said appeal bond on celli and Henry Collett, to Edward A. Noon- January 12, 1893, must be, and they are an mayor, etc. Writ granted. Respondent hereby, set aside, and the appeal is ordered appeals. Certified to St. Louis court of ap- certified to the St. Louis court of appeals. peals.
Harlin, the plaintiff, agrees with Brennan in HARLIN v. YATION et al.
this: that at the conversation had in the iali (Supreme Court of Missouri, Division No. 1.
of 1890 Brennan said he would have nothing July 9, 1894.)
more to do with the notes, but he says he did SALE UNDER Trust Deed – INADEQUACY OF CON
not ask Brennan for further time. He says SIDERATION-DUTIES OF TRUSTEE.
he then saw Nation, and asked him for his 1. The price of $100 for property worth interest note, and Nation said Brennan had $500, sold under a trust deed, is not so grossly the notes. It seems Brenpan did not always inadequate as to raise the presumption of fraud.
2. A trustee in a trust deed is under no have the interest notes when he received the duty to make efforts to procure bidders for the interest, but on such occasion gave Harlin a property, when a sale is contemplated, other than receipt, and subsequently gave him the interto advertise the property for sale, nor to give est note or notes. According to Harlin's evthe grantor personal notice of the sale.
3. Though a trustee should inforin himself idence, he asked for one of these paid interas to the property, to determine whether it est notes at the conversation bad with Na. should be sold in a lump or in parcels, and to tion in 1890. He says he did not then ask determine whether the sale should be adjourned
Nation for further time; that he did not see or not, failure of a trustee to so inform himself is no ground to set aside the sale where the
Nation again until after the property had property consisted of one lot, and could not have been sold; that he quit paying interest bebeen sold otherwise than as one parcel.
cause it took all of his money to support his Appeal from St. Louis circuit court; D. D. family; and that he did not offer to pay interFisher, Judge.
est to Nation or to Brennan from 1890 to 1892. Action by William Harlin against David
With respect to the conversation held in 1890, Nation and another to set aside a sale made
David Nation says Harlin came to him at a under a trust. From a judgment for plain- shop where he was working, and asked for tiff, defendants appeal. Reversed.
an extension of time. He says he then told
Harlin the note had been running long Christian & Wind, for appellants. P. J.
enough; that he must have his money, and, Taaffe and Jas. P. Maginn, for respondent. if not paid, he would sell the property.
George Nation, the brother of David, and BLACK, J. On the 19th November, 1883, trustee in the deed of trust, says he heard the William Harlin conveyed a lot in the city conversation. His evidence is to the same of St. Louis to George W. Nation, in trust to effect as that of David. David testified fursecure three notes of that date, made by ther that he did not see Harlin from that Harlin, and payable to David Nation; one time until after the date of the trustee's sale. for $100, due in one year, and the others be- The evidence as to the subsequent transacing semiannual interest notes of $4 each. tions is to the following effect: The property Harlin paid these interest notes. The princi- was advertised for sale in a newspaper, acpal note was renewed by giving interest notes cording to the requirements of the law and annually up to the fall of 1890. Harlin then terms of the deed of trust, and was sold, as made default in the payment of interest, and before stated, on the 26th December, 1891. continued in default up to the 26th Decem- | George Nation, the trustee, testified that he ber, 1891, at which date the trustee sold the did not give Harlin personal notice of the property, and David Nation became the pur- sale; that he did not know Harlin; that he chaser at the price of $100. In February, made no effort to secure bidders other than 1892, Harlin brought this suit to set aside the to advertise the property and offer the same trustee's sale and to redeem. The trial court at public sale at the proper time and place; gave a decree according to the prayer of the that David was the only bidder, thougb perpetition. The petition is broad enough to sons were going in and out of the courthouse admit the evidence hereinafter mentioned. while he was selling the property; that he The witnesses placed the value of the lot at had never seen the property, and did not the date of the trustee's sale from $380 to know what it was worth; and that he did $800. The reliable evidence, based on sales not know he had been made trustee until his made in the same vicinity, shows that the brother requested him to sell, David Nation lot had a value of $500, and we think this testified that he did not know what the propwas its full cash value. Daniel B. Brennan erty was worth at the date of the sale; that negotiated the loan for Harlin and for Na- up to that time he had never seen it; that he tion. He collected the interest notes up to mailed a postal card to Harlin, notifying him the fall of 1890. At that time Harlin had of the intended sale; that he supposed Harmade default in paying the interest, and lin lived on the lot, and the card was adasked for further time. Brennan says he dressed to him at that place, and that he did then told Harlin he could not give him fur- not inquire of Brennan where Harlin lived. ther time; to go and see Nation, and make Harlin did not live on the lot, but Brennan his arrangements with Nation; and that Har- knew where he resided. Brennan testified lin came back the next day, and said he had that he did not know the property had been made it all right with Nation. Brennan says sold until a month or six weeks after the date he refused to have anything more to do with of the trustee's sale; that, as soon as he the matter; that he thereafter saw Harlin heard of it, he caused two cards to be sent and Nation, but not in relation to these notes. to Harlin,--one dated the 26th January, 1892, asking Harlin to call; and the other dated 102 Mo. 581, 15 S. W. 138. To bring the case the 29th of the same month, notifying Harlin within these general principles, it is argued that the property had been sold under the that the trustee made no effort to procure deed of trust. It seems he then had an offer bidders, otherwise than to advertise the propfor the property, and this was one reason for erty for sale; that he made no effort to give sending the request to Harlin to call at his the plaintiff personal notice of the intended office. Harlin's further testimony is difficult sale, and that he did not inform himself as to understand, but seems to be to the follow- to the value of the property. The trustee ing effect: He saw Brennan in 1892, which advertised the property for sale according was after the date of the trustee's sale. to the terms of the deed of trust, and it can. Brennan told him to clear up the debt, and not be said he was bound to go out and hunt asked him if he had seen Nation, to which up bidders, nor was he bound to look up the Harlin replied that he had not. Brennan plaintiff, and give him personal notice of the then, and in the presence of Harlin, wrote a
sale. Trustees in these deeds of trust have note to Nation, requesting the latter to call never been held to the performance of such at his (Brennan's) office. Harlin did not duties, and to hold that they must look up know at the time that the property had been bidders, as if acting in the capacity of realsold, and it would seem Brennan had not yet estate agents, and must give the debtor perheard of it. Harlin then borrowed some sonal notice of the intended sale, would play money, and offered to pay the debt, interest,
havoc with such sales from one end of the and costs, but Nation declined the offer. state to the other. We think the trustee
The rule is well settled in this state that should inform himself as to the value and mere inadequacy of price is not sufficient to situation of the property, so as to be able to set aside a sale of the character here in ques- determine whether it should be sold in a tion, unless so gross as to raise the inference lump or in parcels, and so as to enable him of fraud or imposition. Phillips v. Stewart, to determine the question whether the sale 59 Mo. 491; Railroad Co. v. Brown, 43 Mo. should be adjourned or not. But the prop294; Judge v. Booge, 47 Mo. 544; Maloney erty in this case consisted of one lot only, v. Webb, 112 Mo. 575, 20 S. W. 683. While and could not have been sold otherwise than this property sold for only $100, when it was as one parcel. All this appeared upon the worth $500 cash, still we cannot say the
face of the deed of trust itself. Nor can we price was so grossly inadequate as to raise say it was the duty of the trustee to adthe inference of fraud. No case which we journ this sale, and give a new notice at the have examined justifies any such conclusion. cost of $24 or $25. On the contrary, we can It is evident the decree of the trial court say it was not his duty to do so. We can cannot stand on any such ground, though not, therefore, see that the failure of the the inadequacy of the price is a matter for trustee to inform himself as to the value of consideration in connection with the other the lot cuts any figure in the case. Parties evidence. The evidence is clear to the ef- have the right, under the law of this state, fect that the plaintiff was in default in the to agree that the equity of redemption may payment of interest in the fall of 1890. It be foreclosed by sale under these deeds of shows to our entire satisfaction that Nation trust, and, while the courts will watch such then told the plaintiff the interest and debt sales with a jealous eye, they must stand must be paid, and, if not paid, the property
until some substantial reason is shown for would be sold. With this admonition, the setting them aside. It would be a pleasure plaintiff for more than a year paid no at- to be able to sustain the decree rendered by tention whatever to the matter, neither pay- the trial court, but, after a careful perusal ing nor offering to pay the accrued interest. of the entire record, we are unable to do so. The property was not sold for over a year To affirm the judgment in this case would after the date of the conversation last men- set a precedent which, if followed, would tioned, and it cannot be said Nation acted unsettle many titles, and at the same time oppressively. Indeed, there is nothing in discredit such sales, to the great detriment the case which shows or tends to show col- of creditors, debtors, and purchasers. The lusion, unfair dealing, or oppression on the judgment is reversed, and the petition dispart of David Nation. If the sale should missed. All concur. be set aside it is because the trustee failed to perform some duty which he should have performed. "A trustee, in exercising his
WALCOTT et al. v. HAND. duties and powers under a trust deed, is a trustee for the debtor, and he is bound to
(Supreme Court of Missouri, Division No. 2. act in good faith, and adopt all reasonable
June 12, 1894.)
Tax SALES-NOTICE TO HEIRS. modes of proceeding, in order to render the
1. Where land is sold by the sheriff under sale most beneficial to the debtor." Chel
execution on the judgment for taxes, the fact sey v. Chelsey, 49 Mo. 540. A literal compli
that the collector purchases the land does not ance with the terms of the deed of trust will render the sale void as against public policy. not support a sale under a deed of trust 2. Where a descendent's land is sold for taxwhere there is unfairness on the part of the
es, without making one of the heirs a party to
the action, such heir may, in an action to retrustee in making it. Cassady v. Wallace, cover the whole tract, recover her aliquot share.
Appeal from circuit court, Clark county; ; land, took possession of said land as owner, Ben E. Turner, Judge.
claiming the same as owner against all the Ejectment by Phoebe A. Walcott against world and against all the heirs of Henry William Hand. There was a judgment for Church, except Phoebe A., the plaintiff defendant, and plaintiff appeals. Reversed. (whose interest he recognized), and especially
On the 20th day of October, 1891, the against Moses Weaver; that from his takplaintiffs, Mrs. Walcott and her husband, be- ing possession in 1872 or 1873 his possesgan an action of ejectment in the circuit sion was open, continuous, adverse, and hoscourt of Clark county for 13.33 acres of tile to all the heirs of Henry Church, exland in said county. Ouster was laid as cept the plaintiff Phoebe A., and particularDecember 26, 1888. Defendant admitted pos- ly against Moses Weaver, and from that session, and denies all other averments of time so continued. In the year 1880, Elisha the petition. A jury was waived, and the Church, in consequence of ill health, left trial resulted in a judgment for the de- this estate, and on leaving delivered the posfendant.
session of said land to plaintiff Phoebe A. The record presents the following case: Walcott, then Phoebe A. Church, who held Henry Church, late of Clark county, Mo., possession of said land, for herself and her died seised of an estate in fee simple in the brother Elisha, from her taking possession lands in controversy, leaving surviving him in 1880, adversely to all the heirs of Henry his children and heirs at law, the following Church, deceased, and particularly against named persons: Ann, who intermarried with Moses Weaver, renting said land, and reAbram Clark (otherwise referred to in the ceiving the rents and profits thereof, until record as Abraham Clark); Belle, who inter- the year 1888, at which time, to wit, about married with Moses Weaver; Elisha and the 14th day of December, 1888, she was Elijah Church; Mary, since deceased without ousted by the entry of defendant, who has issue; Sarah, who intermarried with Wash- ever since withheld from her the possession ington Archer, and who died leaving one of said land. On the 24th day of March, 1890, child, named Henry, who has been absent the said Elisha Church conveyed all his infrom this state continuously for more than terest in said land to Phoebe A. Walcott. 7 years, and has not been heard from for Defendant claims title to said land through more than 30 years; also, this plaintiff, a sheriff's deed executed to Joseph H. MilPhoebe A. Walcott, née Church, and his lion, of date October 26, 1888, and a quitwidow, Margaret Church, sinee deceased. claim deed executed and delivered to deOn the 8th day of October, 1872, Elijah fendant by said Million on the 14th day of Church conveyed his interest in said land to December following (1888). The following Moses Weaver, by deed of general warranty, are the facts surrounding the execution of which deed is in the possession of the plain- the sheriff's deed: The said Joseph H. Miltiff Phoebe A. On the 23d day of June, lion was collector of revenue of Clark coun1870, Ann Clark and her husband, Abram ty, Mo., and as such collector commenced Clark, conveyed all their interest in the land an action against the parties named in said to said Moses Weaver by deed of general sheriff's deed for the recovery of the taxes warranty. That in the latter part of the due upon said land for the year 1885, year 1872, or the first part of the year amounting to the sum of $4.12, and as col1873, the said Moses Weaver contracted and lector recovered the statutory judgment sold all his right, title, and interest in said against said parties on the 22d day of Ocland to Elijah Church for the consideration tober, 1887, the said parties being Peter H. of $125; that, in pursuance of said contract Weaver, George F. Weaver, F. Weaver, Ora of purchase, the said Weaver delivered to M. and William Gill, Cora B., Anne, Martha and the said Elijah Church took possession E., and Edith J. Clark, Elisha and Elijah of said land, on or about the day of Church, and Abraham J. Church. The plain
1872, or in the early part of 1873, tiff Phoebe A. Walcott was not made a in good faith, believing that a good and party to this suit, nor did she appear to the sufficient deed thereto would be made to him action. The said Joseph H. Million, while by said Weaver on the payment of the still collector as aforesaid, caused an execupurchase money aforesaid: that said Elijah tion to be issued on said judgment so renChurch paid to said Weaver the whole of dered in his favor, which was levied on the the purchase money agreed to be paid. That, land in controversy, and on the 26th day upon taking possession of said land, the said of October, 1888, the same was sold, and the Elisha Church, in good faith, believing that said Joseph H. Million, still being the colsaid Weaver would convey to him all his lector of the revenues of said Clark county, right, title, and interest in said land, on the purchased the same for the sum of $97. On payment of the purchase money, made last- the 14th day of December, 1888, while still ing and valuable improvements on said land; collector as aforesaid, he sold and conveyed that is to say, he built a barn 24 feet wide the same to defendant for the sum of $200. by 36 feet in length, set out fruit trees, built | Defendant Hand, during all these proceedand repaired fences; that said improvements ings, was a citizen of Clark county, and had were of the reasonable value of $230. That notice thereof. Plaintiff's contention is that said Elisha, on taking possession of said the said Joseph H. Million, being collector