Commerce Trust Co. v. Ellis

OPINION. I. BOND, J. (After stating the facts as above.)— It is suggested in the brief for appellant that the notice of sale given by the sheriff did not correctly describe eighty acres of the land conveyed in the trust deed. This would seem to appear from an examination of the transcript of the bill of exceptions, but the respondent [706] has produced in this court the agreed statement of facts in its original form which contains a printed slip of the publication made by the sheriff and that shows on its face that there was no error in the description referring to the eighty acres of land in question, but they were correctly described according to the description in the trust deed. Evidently the error in the bill of exceptions resulted solely from negligence in copying therein the contents of the agreed statement of facts. Such a misprision cannot affect the rights of the parties on this appeal. Nor would it justify us in remanding this case for a. reason which does not in fact exist. Moreover, there was no claim made in the petition for any relief on the ground of, misdescription in the notice of sale of the property contained in the trust deed. II. It is insisted for appellant that the foreclosure of the deed of trust was a nullity for the reason that the instrument was void perforce the terms of the following statute: “See. 2859. No foreign corporation or individual shall act as trustee in any deed of trust or other conveyance hereafter made by any person, firm or corporation, whereby any property real or personal, situate or being in this State, is hereafter conveyed in trust for any purpose whatever, unless in such conveyance there shall be named as co-trustee a corporation organized under the laws of this State, and having the power to act as trustee and execute trusts, or an individual citizen of the State of Missouri. No suit shall be brought to foreclose any such deed of trust, unless a resident 'trustee shall be a party plaintiff.” [R. S. 1909, sec. 2859.] Waiving the suggestion of respondent that the act in question is unconstitutional (Roby, Trustee, [707] v. Smith, 131 Ind. 342; Shirk v. City of La Fayette, 52 Fed. 857), and presuming, as is our duty in the first instance, it to be a valid act (State v. Cantwell, 179 Mo. 245; State v. Distilling Co., 236 Mo. 219), as is also urged by appellant (Emmons v. Gordon, 140 Mo. l. c. 500; In re Mulford, 217 Ill. 242; Duryea v. Muse, 117 Wis. l. c. 406), we see nothing in the terms or provisions of the above act which necessarily defeated the conveyance made in the trust deed or prevented its foreclosure, as that took place. The only objection made to the otherwise regular and formal deed of trust is that the grantee named as trustee therein was at the time a non-resident of this State. The statute does not prohibit this in terms, it only provides that no such person shall act as trustee. But even if the construction were admissible that the statute also forbids, the naming or appointing of a foreigner as trustee, that would not impair the creation of a trust by the terms of a deed otherwise valid under the laws of this State. For it is an axiom that no trust shall fail for the want of a trustee, and it is always within the power and duty of a competent court on proper application to preserve a trust by the appointment of a person to execute it. But, in the ease at bar, the contract of the parties as expressed in the deed of trust under review, did not leave them in the predicament of having failed to provide a trustee to carry out their agreement. The deed of trust conveyed the property to a non-resident (A. C. Mitchell) and after describing the property and providing for a defeasance and in case of nonpayment that the whole debt should become due and payable,.it contains the following clause: “And this deed shall remain in force, and the party of the second part [the non-resident] or in ease of his absence, death, refusal to act or disability ■ in anywise, the sheriff of Benton county, Missouri, acting at the time of such request, at the request of the legal holder of said note shall proceed to sell the property hereinbefore [708] •described,” etc., reciting the statutory requirements of such sale and execution by the sheriff of the deed of trust. The fair import and natural meaning and intent of these words was to make the sheriff of Benton county, Missouri, under the circumstances stated in the deed of trust, an alternative trustee by the terms of the contract of the parties to the instrument, and in so' doing they did not contravene any of the provisions of the above-quoted statute. The incompetency of the non-resident to act as trustee, fell within the meaning and purview of the language of the trust deed which expressly empowered the sheriff to act as trustee in case of the “ disability in anywise” of the particular person named. Now a statutory prohibition to act is necessarily a disability in somewise and therefore comes within the strict letter and logic of the language used in the contract between the parties. We conclude, the power of the sheriff to foreclose the deed of trust was full and ample within the terms and stipulations of the instrument, and since the undisputed evidence showed that he only acted after a formal refusal by the first named trustee and upon proper request of the legal holder of the note secured, the validity of his foreclosure is not subject to attack for the error assigned, as to the primary appointment of a foreigner as trustee. III. It is finally urged that the notice of sale published by the sheriff, though in full compliance with the statutes and the terms of the deed in all other respects, failed to recite, as required by law, the book and page in the recorder’s office containing the deed of trust. [R. S. 1909, sec. 2843.] It is conceded that the published notice stated the date of the deed of trust, the names of the parties, the objects of the instrument, the prop [709] erty to be sold and tbe time and place of sale-, and that its- only imperfection was tbe non-recital of tbe book and page containing its record. We cannot perceive, under the agreed statement of facts in this case, bow any one could bave been misled by this omission. Tbe grantor of plaintiff was fully apprised of tbe published sale, for tbe petition states that be placed a sum of money in tbe bands of bis agent with wbicb to buy in tbe property. Nor do we see bow this omission could bave misled tbe general public. Any one interested in tbe sale, after reading tbe contents of tbe published notice thereof, would become at once informed of tbe nature of tbe deed, tbe property to- be sold, tbe debt to be paid, tbe time when tbe trust was executed and tbe day on wbicb it was proposed to be foreclosed. Being possessed of such data, be could at once ascertain tbe particular book and page wherein tbe trust deed bad been spread of record by simply visiting tbe recorder’s office and making inquiry there or an examination of tbe books kept for tbe information of tbe public. In an early case in this State it was held by Wagner, J., in reference to such sales, that “tbe notice given by trustees should contain such facts as reasonably to apprise tbe public of tbe place, time and terms of sale and tbe property to be sold. But mere omissions and inaccuracies in these respects, not calculated to mislead and working no prejudice, will not be regarded.” [Powers v. Kueckhoff, 41 Mo. 430. To tbe same effect; Ohnsorg v. Turner, 13 Mo. App. 533; same case, 87 Mo. 127; Noland v. Bank, 129 Mo. l. c. 61; Baker v. Cunningham, 162 Mo. l. c. 143.] We think this is tbe correct view, and in tbe absence of anything in tbe admitted facts to show tbe neglect to point out the particular book and page whereon tbe deed of trust was spread of record, caused any-loss or injury to tbe parties or prevented any bid710 (Tug at the sale which was made according to the agreed statement of the parties, it should not be declared void. The result is that the judgment is affirmed. All concur.