Cassidy v. Cook

Mr. Justice Dickey delivered the opinion of the Court: It is claimed that the complainant can not be allowed to insist that it was the duty of the trustee to offer this property in parcels, inasmuch as he had, by his own deed, authorized him “ to sell said premises entire, without division, or in parcels,” as he might “think best.” This does not necessarily follow. The power given, by its very terms, implies that the trustee assumed the duty of thinking on the subject, and that he should adopt that course which he should think would be best to secure a good price. It does not mean that the trustee may do as he may please, or that he may do that which should be the most convenient for him. There is no evidence in the case tending to show that the trustee did, in fact, think that this property would sell for a better price “ entire, without division,” than it would if sold in parcels, except what may be inferred from the fact that he did so sell. On the other hand, but a few months before the sale occurred the proof shows that Cook negotiated with Cassidy for the purchase of this very property, at the nominal price of §55,000, §2000 of which was to be paid in cash to Cassidy, and §16,000 thereof was to discharge this incumbrance, and §5000 thereof was to discharge another and junior mortgage on the same property, being in cash or its equivalent the sum of $23,000, and for the balance he was to give a team of horses and a conveyance of certain real estate out of the city. It is said, in this proposed exchange of property the prices were nominal, and inflated in terms beyond their cash value. This may be so, but the actual cash Cook was to pay if the arrangement had been carried out, was $23,000, and interest on thesame from March, 1874. This would be over $5000 more than the amount of this bid, assuming that the team of horses and the lands out of the city were worth nothing. In the absence of proof to the contrary, it may be safely assumed that five houses (each with a yard and stable attached), so constructed as to constitute five separate dwellings, although built together as one block of buildings, would, in all probability, bring a better price if sold separately than if sold era masse. When it is shown that the attention of the trustee was called to the true condition of this property, and that he was requested to offer it in separate parcels, and suggestions were made that purchasers desired an opportunity to bid on certain parts of the property, we can not doubt that it was his duty to have offered the property in separate parcels. Although the survey and plat of the subdivision of this lot had not been recorded, still the houses and barns were there. These furnished monuments for boundaries and descriptions. It may be that the vacant sub-lots should have been sold in one body. Prudence, however, would dictate that resort should have been had to the experiment of selling these separately. A trustee’s duties are not merely formal. It is his duty, in the faithful discharge of his trust, to inform himself as to the condition of property which he is about to sell, and to adopt that course which, in his judgment, will bring the highest price. The decree is reversed, and the cause will be remanded, that the sale may be opened and such proceedings had under the direction of the court as will allow Cassidy to redeem upon just terms,.in a reasonable time to be fixed by the court, and in default of such redemption that the property be again offered for sale, in such maimer as, in the judgment of the court, will be most conducive to obtaining the highest price; and if, upon such biddings, any material addition can be made to the net proceeds of such sale, then the sale heretofore made shall be entirely set aside, and the property disposed of under' the new sale, but if no material .addition can be made to the net proceeds of the original sale, then such sale shall'be confirmed by the court, and the costs of the proceedings shall, in such case, be taxed against Cassidy. Decree reversed.