Miller v. Evans

Dryden, Judge,

delivered the opinion of the court.

This was a proceeding to set aside a sale to the defendants made under a deed of trust, and for leave to redeem. The plaintiffs claim to have acquired the equity of redemption in the property in controversy, viz., lot No. 17, in Riley’s addition to the city of St. Louis, by virtue of a purchase at a trustees’ sale, made under a deed of trust junior to that under which the defendants claim.

The Land Court rendered a decree vacating the deed under which the defendants derived their title, and permitting the plaintiffs to redeem; from which the defendants appealed to this court.

The material facts, as disclosed by the record bearing upon the question arising in the case, are as follows: Samuel Mordecai and Henry Glamorgan, being the owners of the property in controversy, in August, 1854, convoyed it by a deed of trust to one James W. Thompson, to secure a debt of two thousand dollars to the defendant Pelagie Rutgers. The deed provides that, in default of payment of the trust debt at the time appointed, “ the party of the second part, (Thompson,) or his legal representatives, or, in case of his death or absence from the State, the sheriff of the county may proceed to sell the (trust) property,” on the terms prescribed. One Andreas Hummitseli, having become the owner of the trust property subject to the encumbrance, afterwards on the 6th of March, 1857, conveyed the same together with the two adjoining lots (Nos. 15 and 16) to Christian Kribben, in trust to secure a debt from said Andreas to the plaintiff Lich. Kribben, on the 22d of August, 1860, sold and conveyed the three lots, 15,16 and 17, under the last named trust, to the plaintiff Miller, who conveyed an undivided half of the property to his co-plaintiff Lich.

Thompson, the trustee having died leaving a widow and two infant children residing in the city of St. Louis, John H. Andrews, the then sheriff of St. Louis county, on the 1st day of October, 1860, in the attempted execution of the *49 trusts of the deed from Mordecai and Glamorgan, sold and conveyed the premises in controversy to the defendant Pela-gie Rutgers.

The granting words of the deed from sheriff Andrews are as follows: “ By virtue of the authority in me vested by said deed and appointment, I do hereby assign, transfer and convey to her, the said Pelagie Rutgers, all the right, title and interest in me vested by said deed and appointment, that I may or can sell and convey as sheriff and trustee as aforesaid.” This was the deed which, by the decree, was vacated.

1. The title to the property was vested in Thompson, the trustee, in fee simple, by means of the deed from Mordecai and Glamorgan, and on his death it passed to his heirs, encumbered by the same trusts with which it was clothed in his hands. No title whatever was vested by the deed in the sheriff. The deed conferred upon him a bare power of sale contingently, nothing more. Whether at the time of the sale the contingency had arisen which would justify the exercise of the power by him, a question not the easiest of solution, we do not deem necessary to give an opinion, as the decision of the question, one way or the other, would not, in the view we have taken of the case, at all change the result. The whole operation of the deed from sheriff Andrews is upon “ all the right, title and interest in him vested by said deed and appointment.” It assumed to convey nothing except what was thus vested in the sheriff. Now as that deed in no contingency vested in him any right, title or interest in the property whatever, palpably his deed, thus limited in its operation and scope, passed nothing, and was therefore no bar to the plaintiff’s right to redeem.

3. The defendants, in their answer, sought to question the title of the plaintiffs on the ground, as alleged, that the sale at which they purchased was a sale of the whole of the trust property in the lump. It is, however, not pretended in the answer, that the property would have sold for a larger sum had it been sold in parcels. Nor does the evidence show how the property was in point of fact sold, whether in the lump *50 or in parcels ; nor, if in the lump, that any injury resulted therefrom.

A sale of property in the mass, is not void but only voidable ; and in this case no ground is either averred or proved for avoiding the sale.

3. The discrepancy, real or supposed, between the notes described in the trust deed to Kribben, and in the deed from Kribben to Miller in the condition of the record, furnished no ground to overturn the plaintiffs’ purchase.

We find no error in this record. Let the judgment be affirmed; the other judges concurring.