Graham v. King

50 Mo. 22

• Court: Supreme Court of Missouri
• Decided: March 15, 1872
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The respondents, Graham and wife, executed a deed of trust on a piece of land lying in St. Charles county to secure the payment of a debt, anils one of the appellants (King) was made the trustee therein. The deed contained the usual and ordinary provisions, and after default was made in the payment of the debt, authorized the “said King as trustee to proceed to sell the property” after having given the requisite notice in some newspaper published in St. Charles county. Payment not being made when the note became due, King advertised the property for sale in the St. Charles Democrat, a German newspaper, but the notice was inserted in the English language. There were two English papers published in St. Charles county, one, the Cosmos, having an equal circulation with the Democrat. At the sale, King, the trustee, was not present, but left the matter in the hands of his .son, a minor. It is alleged that the property sold for greatly below its value, and an injunction was asked to restrain the trustee from making a deed to the purchaser at the sale. After hearing the proof the court below decreed a perpetual injunction.

1. The notice published in the German paper was obviously bad. When notices are to be published in a paper, an English paper is always intended unless it is expressed to be otherwise. The insertion of aii English advertisement in a German paper would generally give less publicity to it than if it were published in the German language, as those among whom the paper circulates would not be able to read it in the English tongue. And if it were published in Gesihan, then it would be a sealed book to the most of those who read and speak English. The trustee noted without authority in this matter, and the notice was palpably insufficient.

2. The office and duties of a trustee are matters of personal confidence, and he must exercise a just and fair discretion in doing whatever is right for the best interest of the debtor. He must in person supervise and watch over the sale, and adjourn it if necessary, to prevent a sacrifice of the property, and no one can do it in his stead unless empowered thereto in the instrument conferring the trust. A trustee cannot delegate the trust or power of sale to a third person, and a sale executed by such delegated agent is void. (Perry Trusts, § 779 and notes.)

Judgment affirmed.

The other judges concur.