'This is an act brought in the circuit court of Callaway county, by the plaintiff against the defendant to set aside a sale of real estate, sold under a deed of trust, executed to secure borrowed money.
The grounds for relief, as charged, were fraud, mistake, surprise and inadequacy of consideration paid for the land, etc.
*401The judgment was for the plaintiff and the defendant appealed to the Kansas City Court of Appeals, and that court certified the case here under the Constitution.
The record is short, the facts few and practically no conflict in the testimony. The facts of the case are substantially as follows:
Ón and prior to July 1, 1905, N. M. Baker, Lidia Baker, William Baker and Nancy Baker owned forty acres of land situate in Callaway county, Missouri, particularly described in the petition. On that date they made and delivered to the plaintiff, James A. Middleton, their promissory note for the sum of $227.20, bearing eig'ht per cent interest, due one day after date, and executed the deed of trust conveying said land to secure said loan. Said note not having been paid when due, the -plaintiff requested the defendant, John H. Buchanan, the sheriff of said county, the substituted trustee (the one named in the deed of trust having died), to advertise and sell the land to pay said note. In pursuance to said request and according to the terms of said deed the trustee advertised the land for sale at the west front door-of the court house, at Fulton, on August 1, 1910, between the hours of nine o’clock in the forenoon and five o’clock in the afternoon, and on said day at the hours of two o’clock p. m. he sold said land to the defendant Frank T. Baker, 'for the sum of $26, a stranger to all the transactions.
All the Bakers save the last one mentioned were negroes; and the latter was an old friend of the makers of the note, and claimed to have acted for them in the purchase of the land at the trustee’s sale, but he never mentioned that fact to the trustee or anyone else present at tye sale; and if I understand the record there was no evidence introduced tending to show he was acting for the makers. At the time the sale took place neither the plaintiff nor any of the makers of *402the note were present, which fact was known to the trustee.
There was other land sold immediately preceding the time the sale of this forty acres took place. There was a large crowd present, but only two bids were made for this land. The defendant Baker being one of them, and he being the highest bidder, became the purchaser; and he immediately paid the purchase price, and the trustee executed to him a trustee’s deed conveying to him the land mentioned.
The weight of the evidence shows that the plaintiff was innocently mistaken as to the time the land was to be sold, and for that reason was not present at the exact moment the sale took place, but appeared a very short time thereafter; but a few minutes. Upon learning of the sale he immediately, then and there, requested the trustee to resell the land, but the trustee declined to so do — hence this suit.
At the date of the sale there'was due on the note the sum of $338, and the evidence tended to show that the land was worth from $600 to $800.
The plaintiff contends, and the greater weight of the evidence shows, that he was innocently mistaken as to the exact hour at which the sheriff would offer the land for sale, and for that reason he was a few minutes too late to be present at the sale, and was therefore taken by surprise.
In addition he contends that because of the fact that the land sold for only $26, about eight per cent of the debt, and from three to four per cent of the value of the land, the sheriff should have declared the sale void and resold it, especially in the light of the facts that plaintiff offered to pay all the costs then accrued, and offered to guarantee that the land, if resold, should bring its fair market value.
In the case of Griffith v. Hadley, 10 Bosw. 587, it was held that a mistake as to the time of sale, coupled with the fact of inadequacy of consideration paid *403therefor, without much competition, justified the court in setting aside the sale, and ordering a resale. That case was cited with approval in the case of Holdsworth v. Shannon, 113 Mo. l. c. 523.
If those authorities are to be followed in this case, which I think they should be, upon the grounds of equity and common justice, we must hold that the sheriff did not properly perform his duties in the premises, but should have set the sale aside and resold it, then and there, if the bidders had not dispersed, which the evidence strongly tends to show they had not, or if they had done so, then readvertised it for sale for some future date, according to the terms of the deed of trust.
Entertaining these views I am satisfied that the judgment of the circuit court should be affirmed.
All concur.