the advertisement what the property was that was intended to be sold, in connection with the fact that there were no bidders at the sale but the purchaser, and the property was sold at a very inadequate 457 price, makes a sale constructively fraudulent against a defendant and others having liens on the property, and constitutes a ground for equitable relief, although the advertisement may have been a technical compliance with the statute, so as to vest a valid title in the purchaser": Hodgson v. Farrell, 15 N. J. Eq. 88.

The imperfect description of the property in the notice of sale should be taken into consideration in connection with other sfacts in evidence in passing upon the validity of the sale. The weight of the evidence clearly showed that Flannelly as the agent and attorney of the mortgage company was misled by the supposed statement of Capt. McAfee with respect to the payment by that company of all lien judgments which he represented against the property, for it is fair to presume that he would not have paid all others, and left remaining unpaid the judgment under which the property was sold, amounting to so small a sum as thirty-seven dollars and sixty cents. His object seems to have been to pay all liens then in judgment, and it is unaccountable why he did not pay that, unless he was misled by what he understood the statements of Capt. McAfee to be with respect thereto. We do not undertake to say that Capt. McAfee was guilty of any intentional wrongdoing, fraud, or unfairness in buying the property, and only speak of matters connected with the sale from a legal standpoint. These facts, taken in connection with the evidence of White that the custom of the sheriff was to notify him with respect to intended sales of this property, and his failure to do so on this occasion, the inadequate price that the property sold for, fully justified the court in setting the sale aside: Seaman v. Riggins, 2 N. J. Eq. 214; 34 Am. Dec. 200. The purchaser was attorney for plaintiff and was not an innocent purchaser: Harness v. Cravens, 126 Mo. 233.

458 Moreover, the sheriff, in selling the property, was the agent of both plaintiff and defendant, owing a like duty to each, and bound to protect the interest of all parties concerned. It was his duty to see that the property was not sacrificed, and to that end could have returned the execution "no sale for want of bidders": Conway v. Nolte, 11 Mo. 74; Shaw v. Potter, 50 Mo. 281; Holdsworth v. Shannon, 113 Mo. 508; 35 Am. St. Rep. 719; Cole County v. Madden, 91 Mo. 585; State v. Moore, 72 Mo. 285. His failure to do so can only be accounted for on the grounds of his want of knowledge of the property that he was

1

selling and of its value. His course cannot be justified or excused on the ground that the owner of the fee in the property is not here complaining; the mortgagee is. That, however, does not legalize the sale, which in its result is the transfer of defendant's property to the purchaser, for about one-eighteenth of its value-a merely nominal sum.

All the plaintiff company is entitled to is its debts, and that end is not defeated by opening a bid, but will certainly be attained if that be done. The plaintiff suffers no loss if the sale be set aside, while the mortgage company loses a large amount of money. The object of the sale is not to transfer the property of the execution debtor to the execution creditor, "but to pay the debt; he cannot, therefore, be injured by any proceeding which has that for its object, and does not cause any unnecessary delays or expense": Littell v. Zuntz, 2 Ala. 256; 36 Am. Dec. 415. Justice can be but subserved by a resale of the property, for it cannot result in any injury to the purchaser, the purchase money being refunded.

The sale, if invalid as against the movers, could not in any way be legalized by reason of any private arrangement between the purchaser and his clients as to how the property was to be shared by him with them, to which the company was not a party. The judgment 459 is affirmed.

Brace, C. J., Sherwood, Macfarlane, and Robinson, JJ., con

cur.

Gantt, J., concurs in second and last paragraphs, but expresses no opinion as to the first.

Barclay, J., dissents from last, but concurs in first, paragraph.

MR. JUSTICE BARCLAY dissented from that part of the opinlon setting aside the execution sale, and said: "All things considered, it seems to me that the order setting aside the sale, without any sort of terms imposed on the moving parties, should not be affirmed, but that the cause should be remanded, to the end that the motion may be reheard on its merits on the circuit, and such conclusion be then reached as the facts disclosed may appear to warrant, in view of the ruling of the supreme court, that the federal receivership is of itself no impediment to the sale." The learned justice gave the following as reasons for such dissenting opinion: "Here the parties moving to set aside the sale are not the primary debtors. They are persons claiming rights in the property under a mortgage, and they profess to have been surprised at the sale, and to have been willing to pay the claim without a sale. These facts are emphasized in the learned opinion of the court in bank.

"It appears that the moving defendants concede that the plaintiffs mechanics' lien judgment ‘is a prior lien' (to use the language of their

admission in the record), and that the lien judgment has become final as to all concerned. The gravamen of defendants' complaint now is, that they were misled by Mr. McAfee when they were trying to pay off all claims reduced to judgments.

"Should any court, on such a showing, set aside an execution sale, in the exercise of discretion, without putting some sort of terms upon the parties moving for such relief? Ought not the latter, in such circumstances, to be required to do that equity which their admissions concede? Ought they not to pay, tender, or, at least, secure, the plaintiff's judgment which the moving parties have no ground to contest (and do not contest), before an order of resale is made?

"The trial judge merely set aside the sale, without more. Even the costs of the first sale were not required to be paid by the moving parties. Plaintiffs are thus put to the hazard of paying costs of the resale, and of the possibility of losing their present full security for payment. At all events, plaintiffs must lose considerable time now in obtaining payment of their demand, though the latter is practically disputed.

"It seems to me that a court, proceeding to deal with the situa tion described by this record, should at least require security for plaintiffs' judgment before setting aside the former sale in the circumstances here shown, especially where the chief ground of the objection to the former sale is, that these parties were trying beforehand to pay the plaintiffs' demand.

"But no terms were imposed of any sort, for the manifest reason that the learned trial judge thought the sale should be vacated as an interference with the federal receivership. Had he reached, or considered, the general equities of the motion, he would, no doubt, have fully recognized the soundness of these suggestions as to the propriety of imposing reasonable terms on the moving defendants as a condition to setting aside the sale. The imposition of fair terms in such circumstances is approved as well by precedents as by the obvious demands of justice: Sawin v. Bank, 2 R. I. 382; Winterson v. Hitchings, 34 N. Y. Supp. 183; 13 Misc. Rep. 201."

RECEIVERS JURISDICTION OF OTHER COURTS OVER.No court can interfere with the custody of property held by another court through its receiver, but may establish by its judgment a debt against the receivership, which must be recognized even by the court granting the receiver, and is not open to revision by it if the court had jurisdiction of the subject matter and the parties: Gay v. Brierfield Coal etc. Co. 94 Ala. 303; 33 Am. St. Rep. 122, and note with the cases discussing the conflict of jurisdiction between state and federal courts. Receivers appointed by the United States courts are subject to suit in any court having jurisdiction of the subject matter without asking leave of the court which appointed them: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753, and note.

JUDICIAL SALES-SETTING ASIDE FOR INADEQUACY OF PRICE.-Inadequacy of price, however gross, does not invalidate a judicial sale made at the time and place prescribed by law, upon due notice and without proof of any fraud or unfairness or means used to prevent competition: Brittin v. Handy, 20 Ark. 381; 73 Am. Dec. 497. Where property fraudulently conveyed is sold under execution against the grantor for a grossly inadequate consideration, by reason of irregularities in the proceedings, the fraudulent grantee can, by a

proper procedure, have the sale set aside: Miller v. Koertge, 70 Tex. 162; 8 Am. St. Rep. 587, and note. See, also, the notes to Weaver v. Nugent, 13 Am. St. Rep. 800.

MIDLAND NATIONAL BANK V. MISSOURI PACIFIO RAILWAY COMPANY.

[132 MISSOURI, 492.]

CARRIERS-BILLS OF LADING-LIABILITY FOR MISDELIVERY.-A common carrier who issues an original bill of lading calling for delivery to the shipper or his order, and who, in good faith delivers the consignment to the shipper upon his surrender of a duplicate bill of lading, is not thereby relieved from obligation to deliver the consignment to the indorsee for value of the original bill of lading, in the absence of any restriction or limitation or the negotlable character of such bill.

CARRIERS-BILLS OF LADING.-NO CUSTOM PRACTICED AND MAINTAINED by a carrier can prevail against the express language of his contract of affreightment, to affect the rights of the holder by indorsement thereof, or in anywise limit the liability of the carrier thereon, unless such custom has been exercised, and the indorsee has purchased or received the contract with knowledge of that fact.

OF

CARRIERS-BILLS LADING-CUSTOM-MISDELIVERY.-The failure of a consignee to observe a custom, requiring him to take possession of a consignment of goods within a certain time after its arrival at its destination does not justify or excuse the misdelivery of the goods by the carrier, nor relieve against the express language of the bill of lading to deliver only to the shipper's order.

BILLS OF LADING-COLLATERAL SECURITY.-The surrender of bills of lading, held as security, is a good consideration for the substitution, as security of new bills of lading antedating the loan. The holder is still a holder for value as against the carrier.

CARRIERS-BILLS OF LADING-DELIVERY.-The direction in a bill of lading to notify the shipper of the arrival of goods at their destination, can in no way change, modify, or qualify the duty of the carrier to deliver the goods to the shipper's order as provided by the bill of lading.

E. Robinson, for the appellant.

Lathrop, Morrow, Fox & Moore, for the respondent.

405 ROBINSON, J. This is an action by the Midland National Bank of Kansas City, as pledgee of twenty bills of lading issued by the Missouri Pacific Railway Company, against said railway company, for failure to 496 deliver to it the twenty carloads of grain covered by the bills of lading.

The petition contains forty counts, every consecutive odd and even count thereof being based upon the same bill of lading, and all substantially the same, with the exception of the description as to the particular character of grain in each car, its value, and the car number containing same.

The case was tried by a jury, and, after the testimony was all in, the court directed the jury to return a verdict for plaintiff, for which alleged error on the part of the trial court this appeal is chiefly prosecuted.

The following are the substantial averments of plaintiff's petition: "That during the months of September and October, 1891, defendant received the cars of grain at Paola, Kansas, consigned to the order of the shipper at Kansas City, Missouri, and the issuance by defendant of shipper's order bills of lading, covering each car separately; that the various cars of grain, by the terms of these bills of lading, were to be delivered to the order of the Courier Commission Company, at Kansas City, Missouri; that the commission company negotiated a loan of plaintiff, and pledged the twenty original shipper's order bills of lading, duly indorsed, as collateral security for said loan; and that plaintiff presented said bill of lading to defendant, and demanded the grain called for in said bills, which was refused, to plaintiff's damage to the value of the grain,” etc.

In each of the even numbered counts of the petition plaintiff set out, in addition to the above facts, the existence of a general custom in Kansas City, in all cases when grain is shipped to that city on bills of lading similar to those herein mentioned, where delivery is to be made to shipper's order, for the railway companies, on the delivery of such grain, to take 497 up such bills of lading, and that such custom was at all times known to defendant; and that during all said time a general custom had obtained in Kansas City of loaning money upon the security of grain in the hands of the railroad companies on bills of lading similar to these sued on here, when grain is to be delivered to shipper's order, and of receiving such bills of lading as evidence of the ownership of said grain, which custom was known to defendant; and that, in accordance with, and relying upon, such custom, the plaintiff made the loan to the Courier Commission Company, and that, by reason of the custom, defendant became obligated to deliver said grain to plaintiff on the production and offer to surrender the original bills of lading so issued by it, and is now estopped from refusing so to deliver said grain, etc.

In our view of the law governing such instruments and the rights of indorsers thereunder, the matter of custom so set up in the plaintiff's petition, as well as the countervailing custom pleaded by defendant in its answer, will count for but little in the determination of the real issues involved; and in eliminating them now, as factors not to be considered, many minor questions raised by defendant, as to alleged error of the trial court