Bender v. Zimmerman

• Citation: 26 S.W. 973,122 Mo. 194
• Parties: Bender, Appellant, v. Zimmerman et al., Appellants
• Decision Date: 24 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 973

122 Mo. 194

Bender, Appellant, v. Zimmerman et al., Appellants

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Reversed and remanded.

H. S Kelley for plaintiff, appellant.

(1) The deed from Bender to Zimmerman, though absolute on its face was intended only as a security or indemnity against loss by Zimmerman by being surety in an appeal bond, and this intention is shown by the written contract or defeasance executed by Zimmerman to Bender at the time of the execution of the deed. The deed and the defeasance are to be construed together as one instrument, which being done, the deed will be treated as a mortgage. Schradski v. Albright, 93 Mo. 42; O'Neill v. Capelle, 62 Mo. 202; Fontaine v. Co., 109 Mo. 55; Hach v. Hill, 106 Mo. 18. (2) The deed from the sheriff to defendant Zimmerman, made upon a judgment for taxes under which he claims title is void on its face, because it recites a judgment in solido for $ 2,607.62 against several pieces of property, including the lots in controversy, and there is no recital in the deed to show that each lot was sold separately for its own tax, or that the amount for which each lot sold went to pay the tax on said lot. (3) The court erred in excluding proofs offered as to rents and profits actually received by the mortgagee Zimmerman. "The mortgagee is a mere trustee -- he holds the property for his indemnity only and can not make any gain or profit out of the estate." Walton v. Withington, 9 Mo. 545; Anthony v. Rogers, 17 Mo. 394; Ely v. Thompson, 75 Mo. 83; Turner v. Johnson, 95 Mo. 431; 1 Hilliard on Mort. [3 Ed.], p. 448; Hannah v. Davis, 112 Mo. 599. The right, after payment or discharge of the appeal bond, was absolute in the appellant to receive back all that Zimmerman got by virtue of his deed -- the rent actually received was a mere incident to the land. (4) Under the prayer for general relief the appellant was entitled to receive back from Zimmerman all that he had received through and under the deed or mortgage executed to him. The rents were a mere incident to the property, and he was entitled to have them repaid to him, just as he was entitled to have the land returned to him, and there is no question of pleading involved in the case. Hannah v. Davis, 112 Mo. 599; Allen v. Buckley, 94 Mo. 158; Allen v. Ray, 96 Mo. 542; Elting v. Gould, 96 Mo. 535; Payne v. Lott, 96 Mo. 676; Simonson v. Dolan, 114 Mo. 176; Williams v. Hudson, 93 Mo. 524; Allen v. McCabe, 93 Mo. 138. The court might have ascertained the amount of taxes paid, and required Bender to repay them to Zimmerman or deducted it from the rents. The plaintiff offered to prove that Zimmerman collected rents on this property, and the court excluded the testimony, and in doing so erred. Gooch v. Botts, 110 Mo. 419. (5) The further excuse for not reconveying, that Bender agreed that he, Zimmerman, should hold these lots as an indemnity against loss on account of a supposed or possible breach of warranty in a deed by which Bender conveyed and warranted lot 3, block 56, to Zimmerman, October 12, 1880, was no defense, even if true, but which is denied, and was not proved by the weight of the evidence. Such an arrangement would at most be a pledge of real estate by parol to secure or indemnify Zimmerman against a contingent loss, and would be void under the statute of frauds. O'Neill v. Capelle, 62 Mo. 202; Carle v. Eddy, 24 Mo. 117; Schlanker v. Smith, 27 Mo.App. 516. Besides, no loss accrued on that account. Zimmerman defeated Craig and held the lot. The statute of frauds was pleaded in reply to this alleged defense. Taylor v. Penquite, 35 Mo.App. 389; Aultman v. Booth 95 Mo. 383. Parol evidence was not admissible to prove any such agreement as that set up. Such evidence is not admissible to help out a memoradum, even. Ringer v. Holtzman, 112 Mo. 343; Smith v. Shell, 82 Mo. 215; Fox v. Courtney, 111 Mo. 147; Miller v. Goodrich, 53 Mo.App. 430. (6) The court erred in assessing the costs against the plaintiff. R. S. 1889, secs. 2920, 2922; Turner v. Johnson, 95 Mo. 454. (7) The court erred in overruling plaintiff's motion for a new trial. There was no proper defense established, and the finding should have been for the plaintiff for the recovery of the lots sued for in the petition and for costs, as well as for the relief the court did give, and therefore the plaintiff was entitled to a new trial.

S. S. Brown for defendants, appellants.

OPINION

Burgess, J.

Action by plaintiff to compel a reconveyance of certain lots and to recover the sum of $ 135 alleged to have been received by defendant Zimmerman to plaintiff's use.

On the fourteenth day of January, 1881, C. A. Mosman, as administrator, recovered judgment in the circuit court of Buchanan county, Missouri, against the plaintiff herein for the sum of $ 489.68, and Bender having appealed the case to this court, in order to stay execution on said judgment until the same was finally heard, it became necessary for him to execute an appeal bond, and in order to get the defendant Zimmerman to become his surety on the bond and to indemnify him against any loss or damage by reason thereof he and his wife, Ella Bender, conveyed to Zimmerman by deed of date March 1, 1881, lot 5, block 18, lot 2, block 19, and lot 1, block 24, in Robidoux's addition to the city of St. Joseph of which said lots Bender was then the owner. At the same time and as part of the same transaction, Zimmerman executed to Bender a written statement or obligation in writing by which he bound himself to reconvey to Bender said lots freed from incumbrance placed thereon by him, when he should be released from any liability on said appeal bond. The case was finally disposed of, and the costs all paid by Bender, and Zimmerman released and saved harmless on account of said bond. Plaintiff then requested Zimmerman to reconvey the lots to him, which he refused to do. Other real estate of Bender's hereinafter described, had also been conveyed by him to Zimmerman, all of which seems to have been disposed of by him to the satisfaction of Bender. Of this he sold one lot to one Meunth and received the price which he agreed to hold in the same way, that is, as an indemnity.

Zimmerman, as a defense and for reason why he should not be compelled to reconvey the lots described in plaintiff's petition, alleges:

First. That when plaintiff conveyed lot 1, block 24, lot 2, block 44, and lot 9 in block 20, all in Robidoux's addition, to him, he, Bender, did not own said lots and never did own them, but that they were owned by one James A. Matney.

Second. That after the defendant executed the defeasance said lots were sold at sheriff's sale for back taxes on a judgment against said Matney, and that he purchased said lots and received a deed therefor and became the owner thereof.

Third. That the defendant purchased of plaintiff about October 12, 1880, lot 3, block 56, for the price of $ 1,250, and received from him a warranty deed; that in November, 1881, James Craig instituted a suit against plaintiff and Wm. M. Albin and the defendant, to set the deed aside; that said cause was decided in Craig's favor in the circuit court, but Zimmerman appealed to the supreme court, where the case was pending when this suit was brought but has been since reversed and decided in favor of Zimmerman; and that on July 24, 1884, plaintiff for a certain consideration, agreed orally that if said suit of Craig v. plaintiff et al., should be finally decided against the defendant, then he should hold said deed and all the title of plaintiff in the property mentioned to secure the repayment of the $ 1,200 paid for the lot by the defendant, and that defendant had fully performed his part of the agreement.

Fourth. That he let Bender have a note of $ 350 to collect, and Bender was to give him half of the amount collected; that Bender...