I dissent from the conclusion reached in the opinion from Division Two, for a reason *Page 576 not stressed either in the opinion or in the briefs or arguments of counsel, and that is, the gross breach by the sheriff of the duty which he owed to the plaintiff.
The plaintiff held a deed of trust for $12,000 on 240 acres of land in Ralls County. The trustee was unable to act, and the sheriff was appointed by the plaintiff to act as trustee in making the sale of the property after default in the payment of the debt. The sheriff, in speaking of the plaintiff, in his testimony said:
"It was not my part of it to take some action for them. I did not have authority to protect their interest. I do not know why they would be sending me a statement of the amount."
In thus disavowing any sense of obligation in the matter he showed his ignorance of the duty which the law imposes upon him as trustee, and ignored the special trust which the evidence shows the plaintiff placed in him.
The deed of trust provided that, in case of the inability of the trustee to act, the holder of the note, the plaintiff, might substitute the "acting sheriff of Ralls County, or any other person in his stead." It appointed the sheriff, when it might have appointed someone else, showing that it trusted the sheriff to look after its interest. It sent the appointment to the sheriff July 10, 1922, to file for record, and in the letter it enclosed an advertisement of the sale. The plaintiff might have selected the day of sale, but it trusted the sheriff to select the day. The letter used this language:
"The note will be forwarded to you in time for the sale.
"Will you favor us with a copy of the published advertisement?
"We trust you will give these matters prompt attention."
The sheriff apparently paid no attention to the request of that letter, and on July 29, 1922, just twenty days before the sale took place, and nineteen days after the first letter, the plaintiff wrote to the sheriff informing *Page 577 him that it had not heard from him since it had sent him the papers July 10th, and made this request:
"What is the sale day, and will you please furnish us with a copy of the published advertisement?"
This letter likewise was ignored.
Why did the sheriff suppose that the plaintiff desired to send him the note before the sale, and desired to know the date of the sale? Why would they so anxiously insist upon receiving such information before the day of sale?
On August 14th, the plaintiff, not having heard from the sheriff, wrote again and asked what progress was being made with advertising, and used this language:
"More than a month ago we mailed you a deed of trust and have not received any communication from you.
"This matter is important and we trust we may hear from you with a copy of the published advertisement in order that thepapers may be in your possession by the date of the sale."
That letter was written on the 14th. Then on the 17th, for the first time, the sheriff acknowledged the letter and sent a copy of the advertisement. That was two days before the sale. The plaintiff received that letter August 18th, and immediately wrote to the sheriff instructing him to bid the amount of the claim and costs. The amount was over $13,000, including interest then due and expenses. This letter was mailed at Ottumwa where the company had its offices. At the same time the Company sent a telegram which the sheriff received August 18th, as follows:
"Advertisement received. McMurry note and statement mailed today. PHOENIX TRUST COMPANY."
The sheriff offered evidence to show that the publisher of the newspaper in which the sale was advertised sent two copies of the paper to the plaintiff, one copy containing the first advertisement, the second one containing the advertisement with the date of the sale changed. This later advertisement began July 27th, and was published for four weeks. The sheriff testified that *Page 578 when he received the plaintiff's letter dated August 14th, he learned for the first time that the Phoenix Trust Company had not received a copy of the advertisement. That could not be, because he had the letter written by the plaintiff July 29th, in which it reminded him that it had not heard from him, and requested that he send it a copy of the advertisement.
Now what was the situation August 19th, the day of the sale? Sheriff Holt knew that, excepting himself the plaintiff had no one present to bid on the land at the sale. He knew that the plaintiff expected him, before the sale, to have in his possession the note secured by the deed of trust, because it had twice written him to that effect. And it telegraphed him the day before, August 18th, that it was sending the note and statement by mail. He knew, therefore, that the letter was in the mail the day before, and due to arrive August 19th, the day of sale. He did not go to the post office to inquire for the letter until the Monday following, August 21st. When, upon inquiry, on the 19th, he found that no one except himself was present representing the plaintiff, he knew that in a few minutes he could call up the plaintiff by telephone and find out its wishes, or could telegraph for further information and receive it within a very short time, before it was necessary to make the sale, but he did neither of these things. He knew, also, that the plaintiff had every reason to believe that he would not sell the property without receiving further instruction from it.
What could he have supposed the telegram of August 18th was for, when it notified him that a statement was mailed to him that day? Did he think the company was just casually giving him information that was of no particular consequence in the matter?
The sheriff said in his testimony: "I had never received any information or suggestion of any kind from the Phoenix Trust Company, giving me directions as to how the land should be sold or what they wanted me to bid for them. I did not know untilafter the sale they intended *Page 579 to have someone here to bid. I had no such information before the sale."
In making this statement the sheriff divested himself of all his experience as an officer and a man of affairs, and retired from its proper functions his common sense. The effect of his statement is that he believed the plaintiff would start a proceeding to collect a debt, and thereafter pay no attention to the proceeding, and let the debt collect itself. Whether he knew anything about the value of the land or not, he knew that the plaintiff held it of sufficient value to secure the debt of $12,000, and accrued interest, or else it would not have made the loan. He knew, if he exercised his common sense, that it would endeavor to make the loan bring enough to pay the debt, and even if it did not want to buy the land it would take some steps to make it bring as much as possible. The common course of human activities told him that such would be the case. And yet, he says he had no information that the plaintiff wanted anybody to bid for it on the land.
Even with that professed ignorance of common affairs he ought to have manifested ordinary curiosity, and while he was fooling around until four o'clock before making the sale he ought to have telephoned or telegraphed the plaintiff to find out what it wanted in the premises.
According to the sheriff's own explanation of the way the mails operated, he did not expect an answer to his letter of August 17th, to reach him before the sale. Did he think he wrote too late to get an answer? When the plaintiff wrote to him on the 14th — the letter apparently mailed on the 15th — he said he didn't get it until the 17th. If it took two days for it to come he knew that it would take two days for his letter to go, and two days for the plaintiff's answer to come to him. He knew he could not write and get an answer in the two days remaining. Either that is the case or he received the letter on the 16th and should have answered it on that day. But whatever *Page 580 his theory of the mails was, he knew by receiving a telegram, that a letter was in the mail.
The trial court in rendering judgment found there was no evidence of actual fraud between the sheriff and the bidder, but it found that the sheriff failed to send the plaintiff a copy of the advertisement, and that the Phoenix Trust Company had no representative at said sale, "but relied upon said Holt to do as aforesaid, and that said Holt failed to make any bid for the said company at the said sale; that said Phoenix Trust Company used due diligence in attempting to find out when the sale was to take place and was not guilty of negligence therein."
The opinion in Division Two holds that the Phoenix Trust Company was negligent in failing to have someone present to bid on the property. The evidence amply supported the finding of the trial court in that respect, that there was no such negligence. The only negligence of which it was guilty was negligence in trusting the sheriff. The company had every reason in the world to believe that he would not make the sale until he received the letter containing the note, or that he would not make the sale before communicating with plaintiff and explaining the situation. But the sheriff, without possession of the note, or the deed of trust, with nothing in his hands except perhaps the paper showing his appointment and the advertisement, without inquiring at the post office, or otherwise attempting to communicate with the plaintiff, made the sale. The finding of the chancellor is fully supported by a great preponderance of the evidence. The sheriff's entire excuse for his conduct is based on the statement quoted above — that he did not know that he had any authority to protect the interests of the plaintiff. He did no know his duty in the premises.
The law is well settled as to the duty of a trustee in such case. It was said in the case of Givens v. McCray, 196 Mo. l.c. 311: "It is fundamental that the trustee must in all cases in conducting sales of real estate, by reason of the powers conferred upon him by the deed of trust, discharge his duties impartially with the view of protecting *Page 581 the interests of all parties who may be interested in such property."
And in the case of Goode v. Comfort, 39 Mo. l.c. 325, this court said: "Trustees are considered as the agents of both parties — debtor and creditor — and their action in performing the duties of their trust should be conducted with the strictest impartiality and integrity." [L.R.A. 1917B, l.c. 542-543.]
The sheriff owed no duty to any prospective purchaser. He seemed to forget that. His sole duty was to the mortgagor and the mortgagee, and in this case the mortgagor evidently had abandoned any attempt to save his property. The sheriff's duty to the mortgagee remained: to protect its interest. That is what he was appointed for, that is the duty his office, as trustee vested in him. According to his own statement, he did not recognize that obligation as binding upon him, and he acted all through as if he owed no duty to the plaintiff.
I think that the usual deference to the finding of the chancellor requires the judgment to be affirmed. Atwood, J., concurs.