
    Sumrall, Trustee of Dobyns et al. Appellants, v. Edward Chaffin and Albert Todd, Respondents.
    1. Deed of trust — Advertisement under, what sufficiently accurate. — An advertisement, under a deed of trust on a certain lot of ground, correctly recited the number of the lot, and further stated that the land was to bo sold with all the improvements on it, but incorrectly stated the number of houses embraced in it. No attempt was made to show that any one was misled by the advertisement. Seld, that the advertisement was sufficiently accurate.
    2. Deed of trust — Sale by trustee — Property should be sold in subdivisions, when. — It Avould be the duty of a trustee, in selling a number of tenement houses standing together, to dispose of them singly or to sell the land -in parcels less than the whole, if any one desired to purchase in that way, even though the houses were so built together with their walls that the property would not be readily susceptible of a division.
    
      
      Jijrpeal from St. Louis Circuit Court.
    
    
      Geo. P. Strong, fpr appellants.
    
      J. JV*. Litton, for respondents.
   WaGNER, Judge,

delivered the opinion of tbe court.

This was a proceeding in equity to set aside a sale made by a " trustee, and for an account of the rents and profits of the property sold.

The averments in the petition are, in substance, that on the 30th of May, 1859, Edward Dobyns and wife made a deed of trust to Albert Todd to secure the payment of $5,000 loaned to Dobyns by defendant Chaffin, together with six interest notes for $250 each; that the principal note was due in three years and the-interest notes were payable semi-annually; that the property was-subsequently conveyed to Sumrall, in trust, subject to the debt, of Chaffin, which was a prior encumbrance; that Dobyns was the-plaintiff’s agent,-attending to the payment of the interest notes;, and that, being on the eve of departing from the city of St.. Louis, where the- property was situated, and the principal note-being past due and some of the interest notes remaining unpaid, he went to the defendant Todd and made a contract with him, as trustee in the deed and agent of Chaffin, by which Todd agreed that no steps should be taken during Dobyn’s absence, either to enforce said deed of trust or to collect the notes, except out of certain rents ; that the conditions of the agreement with Todd were that Dobyns should turn over certain rents to him, yielding $132 monthly, and amounting to $1,584 per annum; that Dobyns complied with this agreement, and that the rents were sufficient to pay the taxes, -interest, insurance, and part of the principal of the debt, but that Todd would not consent to place the balance to the credit of the principal, and it was therefore-agreed that he should .hold it in his hands for the plaintiff. It is alleged that, relying on this understanding and agreement, Dobyns left the city, and that Todd and Chaffin, by their conduct in receiving the rents and agreeing to apply and appropriate-them, lulled Dobyns into security; and that, soon after be bad left, Todd, in fraud of tbe plaintiff’s rights, .and in violation of tbe contract entered into, advertised and sold tbe property under the deed of trust, and purchased tbe same for Chaffin.

Tbe defendants answered jointly, and substantially denying tbe allegations set out in the petition. They virtually say that Dobyns did not put any such amount of rents in tbe hands of Todd, and knew that be did not; that be pretended and professed to do so, but in this pretense and profession be ivas guilty of bad faith.

The cause was beard upon tbe pleadings, exhibits and proofs, and tbe court below dismissed the petition and awarded judgment for the defendants, and tbe plaintiffs have brought up tbe case for review by appeal.

A careful reading of all tbe proofs adduced and preserved in tbe record shows beyond all doubt that tbe evidence does not sustain tbe charges contained in tbe plaintiff’s bill. When called upon to testify, Dobyns, who was the principal and only material witness for tbe plaintiff, wholly fails to show that there was any agreement made by Todd not to sell tbe property under tbe deed of trust and in bis absence. He only says —and this is bis strongest language— I was satisfied, from what transpired, Mr. Todd would not sacrifice my property.” He relied upon Mr. Todd’s indulgence, but not upon any binding, positive contract. ■On the other band, Mr. Todd is clear and explicit that no such arrangement or agreement was entered into. He agreed to take tbe rents, and had they been as represented they would have been satisfactory, and tbe sale would not have taken place. It was a .matter of favor to Dobyns, but imposed no legal disability as to , a foreclosure and sale of tbe property. Tbe arrangement was ■made and concluded solely on tbe representation of Dobyns as to tbe condition of the property and the amount and certainty of the rents. But after Dobyns’ departure it was found that bis representations were wholly untrue. Tbe property was turned over to Porter & Wolff, real estate and collecting agents, and tbe testimony shows that there were back taxes on the property, that tbe tenants bad been garnished, and that up to July 22d, tbe date of the sale, nearly two months having elapsed, they had only been able to collect $57; that up to October 1st they only received $297, and part of this was paid out on judgments against Dobyns. Under these circumstances, when the principal debt, with the accumulation of one year’s interest, was due, and some of the interest notes remained unpaid, it is not strange that Todd deemed the rents an inadequate security. He was acting for a principal who was a non-resident, and who relied upon him exclusively to protect his interest. When, therefore, instead • of receiving the $182 a month w'hich Dobyns assured him he'would get, he got only the small amounts above stated, he considered that he was deceived, and was under no further obligation to desist from selling and securing his debt.

Dobyns may have been too sanguine in his estimates, and may have inadvertently neglected to state the real condition in which the property was placed; but the fact is patent that his statement amounted to a misrepresentation. The property was forfeited for the non-payment of taxes; back taxes were due, amounting to over $500, and the rents did not yield the sum supposed. When Dobyns represented that the rent of the houses would realize $182 a month, or $1,584 a year — a sum amply sufficient to keep down insurance, taxes and interest — and would yield abalance over, Todd said if that was the case it would be satisfactory. But it turned out not to be true, and hence-there was neither a legal nor moral obligation binding on'Todd.

A point has been made in regard to a misdescription in the advertisement, which it is argued operated injuriously toward the debtor. But in this assumption we cannot concur. The ground sold was a lot with certain tenement houses on it. The number of houses was not correctly stated in the advertisementbut the description was given correctly as to the lot, just as it was contained in the deed of trust, and it was further stated that the lot was to be sold with all improvements on it. This I think was entirely sufficient.' There was no necessity for any other description than that inserted in the deed; and it is safe to suppose that bidders, when they desire to purchase property, and the advertisement informs them what property it is, will always inform themselves as to its condition. Besides, it is not attempted to be shown that any injury resulted from the advertisement. Had any one been misled by it, a wholly different question would be presented.

It is also contended .that the trustee unwisely and unsoundly exercised his discretion in selling the trust property in gross, ■when it should have been divided, but there is no evidence of this; in fact,' the proofs are to the contrary. The weight of evidence goes to show that these tenement houses were so built ■together with .their walls that the. property was not readily susceptible of division. Still, we think that if there was any one who desired to purchase one of these houses, or a strip of-land less than the whole, it would have been the duty of the trustee to have sold in that way; for the trustee is bound to realize the most he can for the debtor. But the evidence here vindicates the action of the trustee most conclusively. It shows .that he attempted to sell the property by parcels and subdivisions; that he distinctly stated at the commencement of the sale that if any one wished to purchase a piece or lot it would be - so set up, and he could have the opportunity. And after an ineffectual attempt to sell in that way, in consequence of there being no. .bidders, the property was then sold altogether. The sale seems to have been' conducted with perfect fairness, and we fail to see any reason for disturbing it.

Some .other matters were discussed in the argument of this .cause, but we deem it unnecessary to notice them. They are not materially important, and can have no influence upon the final decision. In our view the judgment of the lower court must be affirmed.

The other judges concur.  