Judge v. Booge

Wagner, Judge, delivered the opinion of the court. It is insisted by the counsel for the appellant that the decree in this case is erroneous. because it does not recite or state the facts on which it is founded or which the court below considered as proved. But under our present code it is not required that the facts upon which the decree is based should be specifically found. Under the practice act of 1849 it was necessary to find the facts. The judgment was the legal conclusion of the facts set out in the finding, and therefore the finding had to contain all the facts necessary to sustain the judgment. But the law, as enacted in 1855, has changed the rule and made it otherwise. (Kurlbaum v. Roepke, 27 Mo. 161; Martin v. Martin, id. 227; Brosius v. McGaugh, id. 230.) In equity the case is now preserved in the same manner as in an action at law. All the material evidence must be incorporated in the bill of exceptions, for the case is heard in the appellate court upon the pleadings and the evidence, and the whole case will be passed upon in the court of last resort and decided accordingly. (State ex rel. Allen v. St. Louis Circuit Court, 41 Mo. 574.) It is unnecessary to examine the charge made in the bill as to the combination entered into between Booge, the appellant, and Chittenden and Copelin for the purpose of cheating and défrauding Judge, as the allegation was not sufficiently sustained by the [548] proofs, and it becomes unimportant in view of the subsequent shape given to the case. That Booge purchased the notes and caused the land to be sold with the express purpose of speculating and gaining an unconscionable advantage over Judge, is too dear and transparent to be doubted for a moment. Judge had made his two promissory notes for $5,000 each, secured by deed of trust on upward of 2,000 acres o£ very valuable land in St. Charles county. The notes had just matured. They bore no interest, and yet Booge buys them for their full face, and commences proceedings to foreclose the deed of trust at once. His attorney wrote out the advertisement and had it published in a paper without taking time to consult the trustee, and afterward showed it to the trustee and got him to approve and ratify the action taken. Previous to this time Judge had been arrested by the military authorities of the United States and kept confined in a military prison till long after his property was sold and sacrificed. No effort was made to notify either him or his agent, but he was kept in profound darkness. It is true that Booge had the right to buy the notes, and he had also the right to pursue Ms remedy and enforce the collection; and if everything was conducted fairly and in pursuance of law, he is entitled to be protected, notwithstanding his motives. For the purpose of deciding this case I shall leave out of view the mass of matter relating to fraud in the transaction, as ,it may be satisfactorily disposed of without entering into that examination. When the property w'as set up for sale it sold in mass without any division, and was struck off to Booge for $4,000, a sum conclusively shown by the evidence not to be one-twelfth part of its actual value. The bidders then separated and dispersed, and when the trustee proceeded to make out the deed he discovered ' that 'the provision in the trust deed had been violated in the sale — that the deed required that the land should be sold in parcels. When the attention of Booge and Ms attorney was directed to this they refused to complete the purchase, and the trustee then, ■ on the same day, without giving any new notice, re-sold the •property. This second sale took place within the hours specified [549] in the advertisement, but no person was present at it except the parties immediately interested. Booge again became the purchaser at the same price; there was no competition in the bidding. Although the price paid was grossly inadequate, yet this consideration, unattended with other circumstances, would not be sufficient of itself to authorize a court to set aside the sale or declare the purchaser a trustee for the grantor in the deed. But it is an element which the courts will rigidly scrutinize in connection with other facts. Sales made by trustees being a harsh inode of disposing of the equity of redemption, should be watched by the courts with a jealous eye, and should not be sustained unless conducted in all fairness and integrity. The trustee, in exercising the power, becomes the trustee of the debtor, and is bound to act bona fide and adopt all reasonable modes of proceeding in order to render the sale most beneficial to the debtor. (Goode v. Comfort, 39 Mo. 313.) That the trustee, in exposing the property to sale a second time, when there was no competition, did not exercise a sound discretion, is apparent. It is doubtful whether he had the power to sell at all under the law; most certainly not under the circumstances of this case. In the case of Barnard v. Duncan, 38 Mo. 170, Judge Holmes, in writing the opinion of the court, held that where the trustee in a deed of trust with a power of sale at public auction, upon giving notice for a certain number of days, advertises the property and puts it up for sale, and the property is struck off to a bidder, the trustee can not, upon the same day, re-sell the property because the purchaser refuses to complete the contract; that there must be a new publication of notice. The same doctrine is repeated in Dover v. Kennerly, id. 469. Although the facts in the case of Barnard v. Duncan did not require that precise point to be decided, still the mode of proceeding pointed out on a second sale is the only one which can do complete justice and protect the rights of the debtor. Where a re-sale is had upon the same day that the first sale takes place, the time is of course uncertain and depends upon the contingency that the first purchaser will not perfect and execute his contract. [550] How are bidders to know that the property will again be re-sold, and at what hour the sale will happen ? It can not be expected that they will wait for hours at the place for the happening of an uncertain event. Under such circumstances the obvious duty of the trustee would be, in the exercise of a sound discretion and for the protection of the interest of the debtor, to re-advertise and sell upon full notice, when the bidding would be open to competition and a fair price might be obtained. It is very questionable whether any proclamation was made in this case notifying the bidders that a re-sale would take place in the event that the purchaser did not comply with the terms. Whilst there is some evidence going to show that such proclamation was made, the evidence is equally explicit on the other side that there was no such proclamation. M. L. Gray, who was interested in the matter as an attorney adverse to Judge, the respondent, was present, and states that he can not say there was any notice given that there would be a re-sale in the event that the purchaser at the first sale did not execute.the terms of the agreement. He had an idea that such notice was given because it was the usual custom, but he can not state positively that there was any such notice or proclamation. Judge Krekel, who was also acting as attorney for Chittenden, who was interested in the transaction with Booge, was present at the first sale by special request of his client, and he says that he thinks he would have recollected the fact if any proclamation had been made concerning a second sale; that he had thought over the matter, and had no recollection whatever of- any proclamation being made looking to a second sale on that day in any contingency. The conclusion impressed upon my mind is clear, that although there was something said about a re-sale taking place in the event that the purchaser should make default, as deposed by some of the witnesses, yet the proclamation was made in such a manner that it did not impart general information, and, for the purposes of this case, must be considered as no notice at all. A sale of this character must be distinguished from a regularly adjourned sale. The power of a trustee to sell at public auction after a certain public notice of the time and place of sale includes [551] the power regularly to adjourn the sale to a different time and place when in his discretion, fairly exercised, it shall seem to him necessary to do so in order to obtain the fair, auction price for the property. (Richards v. Holmes, 18 How. 147.) The trustee should always postpone the sale when necessary to obtain a fair price, and should never permit the creditor to force the sale at an inadequate price. When this second sale took place, there was nobody present except Booge and those acting with him. Under such circumstances it would have been the plain duty of the trustee to have postponed the sale instead of permitting an absent and imprisoned party’s property to be sacrificed. But the fact stares us in the face at every step in this proceeding that the trustee had little or nothing to do with it. He was a mere passive instrument, and allowed Booge to manage and dictate everything that was necessary or requisite to subserve or conduce to his sinister purposes and selfish ends. A court of equity can not be prostituted to sustain such a transaction. But the appellant further contends that the decree can not be sustained by the law. The respondent voluntarily dismissed the suit as tó Copelin on the ground that he was an innocent purchaser under Booge, and Chittenden was released by making a compromise with him. Instead of avoiding the sale in ¿oto, as might well have been done, the court simply decreed that Booge should pay over the profits, and allowed him for all his expenditures and commissions besides. This was exceedingly favorable to him, and surely if Judge does not complain he should not be dissatisfied. We do not think that Judge obtained all he is entitled to; but as he seems to acquiesce, we have only to affirm the judgment. Judgment affirmed. The other judges concur.