Gray v. Worst
| Decision Date | 07 June 1895 |
| Citation | 31 S.W. 585,129 Mo. 122 |
| Parties | Gray, Appellant, v. Worst |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.
Affirmed.
Thomas & Hackney for appellant.
(1) It was proper for the plaintiff to show, by evidence aliunde the proof of publication, that the trustee's sale had been advertised thirty days. Allen v. DeGroodt, 105 Mo. 454. (2) The insertion of the notice of sale in the newspaper on the nineteenth day of May, and its publication in each successive issue of the paper up to the day of sale June 18, constituted thirty days' notice of the sale. In computing time in cases of this character, the rule is to include the first day and exclude the last, or vice versa. Littleton v. Christy, 11 Mo. 390; Hahn v Dierkes, 37 Mo. 574; Reynolds v. Railroad, 64 Mo. 70. (3) By the foreclosure, sale, and purchase by plaintiff, he became the owner of the land, and also the owner of all crops standing on the premises and unsevered from the soil, the deed of trust under which the foreclosure occurred having been executed by Shoemaker prior to the leasing of the premises to the defendant. Hayden v. Burkemper, 101 Mo. 644; Vogt v. Cunningham, 50 Mo.App. 136. (4) A lessee holding under the mortgagor by a lease granted subsequently to the mortgage has no greater rights than the mortgagor, and can not retain emblements after foreclosure sale. 1 Jones on Mortgages [4 Ed.], secs. 697, 780. (5) The clause in the trust deed permitting the mortgagor and his assigns to occupy the premises until sale, in consideration of paying the taxes, did not create the relation of landlord and tenant between the trustee and the mortgagor or his assigns, for these reasons: First. The mortgagor was already in possession of the premises, and the trustee never was. There was no letting of the premises. Second. The mortgagor and his assigns had the right, independent of this agreement, to so occupy the mortgaged premises. Third. It was the duty of the mortgagor or person occupying the land to pay the taxes, independent of the stipulation in the trust deed. 1 Jones on Mortgages, sec. 780. Fourth. There was, therefore, no rent reserved. (6) But conceding, for the purpose of argument, that the clause quoted in the trust deed did create the relation of landlord and tenant between the trustee, on the one hand, and the mortgagor and his assignee or lessee (the defendant), on the other, still defendant is not entitled to the crops. If defendant was the tenant of the trustee, the obligation to pay the taxes rested on him the same as it rested on the mortgagor. 12 Am. and Eng. Encyclopedia of Law, p. 715. Wood on Landlord and Tenant [Ed. 1884], pp. 971, 972, note 2; 2 Taylor's Landlord and Tenant [8 Ed.], sec. 535, p. 136. (7) The trust deed from Shoemaker having been recorded prior to the execution of the lease to defendant, the defendant is charged with notice of its contents. 1 Jones on Mortgages [4 Ed.], sec. 776.
McReynolds & Halliburton for respondent.
(1) The notice of sale under deed of trust was insufficient, not being published the requisite length of time, as thirty days must intervene between the first publication and day of sale. Bank v. Stumpf, 73 Mo. 311; Bank v. Stumpf, 6 Mo.App. 17. (2) The sale was void for the reason that the deed of trust requires the land to be sold at the door of the courthouse in the county where the premises are situate. This court will take judicial notice that there are two courthouses in Jasper county, one at Carthage and one at Joplin, so fixed by general statute. R. S. 1879, sec. 1159; R. S. 1889, sec. 3377; Session Acts, 1893, pp. 141, 142. (3) The mortgagor and mortgagee having by contract made the mortgagor and his assigns the tenants of the trustee, it places Worst in the same position that he would have been had the trustee made him a lease of the premises, and the trustee and his grantee can not maintain the action for the value of the crops; and even though rent as provid in the deed of trust had not been paid, it would only give the trustee and his assigns the right to terminate the tenancy under the statute and bring suit for possession. Sexton v. Hall, 45 Mo.App. 339; Simpson v. Keane, 39 Mo.App. 635. (4) The parties had a right to make this provision. Jones on Mortgages [3 Ed.], secs. 79 and 782. (5) Worst having rented the farm from Shoemaker and planted the crops before the sale and remaining in possession and harvesting the crops, plaintiff was not entitled to recover in this action. McAllister v. Lawler, 32 Mo.App. 91; Adams v. Leip, 71 Mo. 597. (6) So long as the mortgagee refrains from taking possession or neglects to enforce his rights under the mortgage, the mortgagor has the right to rent the mortgaged premises and to collect the rents, and he is in no way answerable to the mortgagee therefor; and in such a case the mortgagee would have no greater right against the assignee of the mortgagor. Simpson v. Keane, 39 Mo.App. 643; White v. Wear, 4 Mo.App. 341; In Re Life Association, 96 Mo. 632.
We adopt substantially the statements of the plaintiff in this court as giving a fair outline of the controversy.
The action was instituted in the circuit court of Jasper county, August 16, 1892.
The plaintiff, in his petition, claimed that in June, 1892, he was the owner of certain land in said county; and also the owner of twenty-seven acres of wheat, twenty acres of oats, and thirty-three acres of corn and potatoes, standing and growing upon said premises; and that afterward the defendant wrongfully took said crops and severed the same from said land and converted them to his own use, to plaintiff's damage in the sum of $ 700, for which he prayed judgment.
The defendant's answer consisted, first, of a general denial; second, statement that in August, 1891, he rented said premises from Seth Shoemaker, for a term ending September 1, 1892, and in October, 1891, paid Shoemaker the full amount of rent due under his lease for said term.
A trial was had by the court, without the intervention of a jury, and resulted in a finding and judgment for defendant. In due time plaintiff filed a motion for a new trial, which being overruled, he brought the case to this court by appeal.
The facts disclosed on the trial are substantially as follows:
August 1, 1888, James S. Shoemaker (sometimes called "Seth" Shoemaker) was the owner of the land referred to, and executed a deed of trust (duly recorded) conveying said land to George W. Toms, as trustee, to secure a note of $ 1,000, payable to the Mutual Benefit Life Insurance Company, of Newark, New Jersey, with interest from the date of said trust deed, evidenced by interest coupons. The latter, amounting to $ 30 each, represented semiannual interest on the principal debt. They were payable on the first days of April and October of each year following the date of the trust deed. The deed required the mortgagor and his assigns to pay all taxes assessed against the land as hereinafter mentioned.
It was further provided that, in default of compliance with any of the covenants of the deed, the whole debt might (at the option of the holder of the indebtedness secured) become due, and a sale of the mortgaged premises might then be had, after due advertisement of said sale for thirty days in a newspaper published in the county where the land lay.
It was stipulated that, in event of the absence, death, resignation, etc., of the trustee, the sheriff of Jasper county should become successor in trust, and perform all the duties of trustee.
Default was made in the payment of taxes for the years 1890 and 1891, and in the payment of the interest coupon, maturing April 1, 1892. Toms, as trustee, resigned his trust, and the sheriff of Jasper county, acting as trustee (at the request of the legal holder of said note and coupons), advertised the property for sale in Labor's Tribune, a weekly newspaper published in said county, the day of sale being therein fixed as the eighteenth day of June, 1892. The advertisement appeared in said paper as follows: May 19, May 26, June 2, June 9, and June 16, 1892, being the regular issues of said paper.
The advertisement (as well as the deed made by the sheriff) declared that the sale was occasioned by the default in the payment of taxes for 1890 and 1891, and of the interest coupon which fell due April 1, 1892, and the consequent maturity of the whole debt.
June 18, 1892, the property was sold by the sheriff, acting as trustee, and purchased by plaintiff, to whom a deed in regular form was executed. The trustee's deed recites, among other things, that the notice of sale was advertised for thirty days; but attached to the trustee's deed was a proof of publication, which omitted to show that the notice was published on May 16. The first insertion named in the proof of publication is of May 26. It was, however, shown on the trial, by the testimony of the publishers of the paper, and also by the files introduced in evidence, that the notice of sale was published on May 19, and in each issue of the paper thereafter until the sale, including June 16, 1892.
At the time of the purchase by the plaintiff, at trustee's sale, there were standing and growing on the premises the crops in controversy, mentioned in the petition. As soon as plaintiff purchased the land, he notified defendant not to remove the crops; that they belonged to plaintiff. Defendant disregarded this notice, and, before yielding possession, cut and appropriated the crops within a short time after the sale and refused to pay plaintiff anything therefor. The crops were worth about $ 500.
It was shown by the...
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