O'Fallon v. Clopton

• Decision Date: 21 June 1886
• Citation: 1 S.W. 302,89 Mo. 284
• Parties: O'FALLON, Guardian, etc., v. CLOPTON.
• Court: Missouri Supreme Court

1 S.W. 302

89 Mo. 284

O'FALLON, Guardian, etc., v. CLOPTON.

Supreme Court of Missouri.

June 21, 1886.

1. EQUITY — PARTIES — JOINDER.

A court of equity, even after a final hearing on the merits, and on appeal to the court of last resort, will compel the joinder of necessary parties defendant.

2. MORTGAGE — FORECLOSURE.

A strict foreclosure is not allowed or recognized by the courts of Missouri. Every mortgage debtor is allowed his day in a court of equity.

3. SAME — TRUST DEED — STATUTE OF FRAUDS.

Where the owner of a trust deed forecloses the same, and buys in the premises at a nominal or grossly inadequate sum, under a verbal agreement to hold said premises in trust, and expose them at public sale, and render the surplus proceeds, after satisfying the debt, to the mortgagor, equity will compel the creditor to carry out such agreement before allowing him to enforce payment of the note accompanying the trust deed.

Appeal from St. Louis court of appeals.

Action to recover the amount due on a promissory note collaterally secured by a trust deed of land. Decree for plaintiff, and appeal therefrom by defendant.

Henry Hitchcock, for respondent, Henry A. O'Fallon, Guardian, etc. H. M. Bryan and W. H. Clopton, for appellant, William H. Clopton.

NORTON, J.

This suit is founded upon a promissory note executed by defendant and B. B. Clopton, his wife, not sued herein. It is averred in the petition that the defendant and his wife executed a deed of trust conveying to one Carter, as trustee, certain real estate to secure the payment of said note; and that, in pursuance of the power therein given, the trustee sold the property for $789.73, which was applied as a credit on the note; and judgment was asked for the remainder. The defendant filed an answer in the nature of a cross-bill, which, after admitting the execution of note and deed of trust, and the sale under it, sets up that the plaintiff, who controlled said sale, declined to postpone the same after it was advertised to be made, but agreed to buy the property in at said sale, and hold it in trust for defendant, and thereafter to make public sale of the same to the highest bidder; the proceeds of which were to be applied, first, to the payment of the note, and the surplus, if any, to be paid to defendant. The answer then avers that, relying on this arrangement, he made no effort to guard or protect his interest at said sale, but allowed it to be bought in by the agent of plaintiff, and that plaintiff has failed to observe or keep his said agreement, and has declined and refused to make sale of the property as agreed upon; that he undertook to sell the same, but released bidders from their bids. The answer concludes with a prayer to decree the sale void, and to invest the property in defendant subject to the deed of trust, and for such other and further relief as he may be entitled to.

Upon the hearing and trial of the cause the circuit court entered the following judgment and decree: "That the plaintiff recover of and from the defendant, William H. Clopton, the sum of $2,862.69, with interest thereon at the rate of ten per cent. per annum until paid, and that he have execution therefor. And the court doth further adjudge and decree that the said defendant, William H. Clopton, have leave, and he is hereby authorized, to redeem the premises described in the deed of trust mentioned in the petition and second amended answer herein, upon his paying to the plaintiff herein, at any time within sixty days from this day, the whole amount which would have been due (at the...