58 S.W.2d 755 (Mo.App. 1933), Costello v. Ashford

Citation:58 S.W.2d 755, 227 Mo.App. 862
Opinion Judge:SHAIN, P. J.
Party Name:J. ED. COSTELLO, APPELLANT, v. J. DALE ASHFORD, DEFENDANT, EQUITABLE LIFE INSURANCE COMPANY OF IOWA, RESPONDENT
Attorney:Ford & Wright for appellant. F. P. Stapleton for respondent.
Case Date:April 03, 1933
Court:Court of Appeals of Missouri
 
FREE EXCERPT

Page 755

58 S.W.2d 755 (Mo.App. 1933)

227 Mo.App. 862

J. ED. COSTELLO, APPELLANT,

v.

J. DALE ASHFORD, DEFENDANT, EQUITABLE LIFE INSURANCE COMPANY OF IOWA, RESPONDENT

Court of Appeals of Missouri, Kansas City

April 3, 1933

Appeal from Circuit Court of Nodaway County.--Hon. D. D. Reeves, Judge.

Reversed and remanded.

Ford & Wright for appellant.

F. P. Stapleton for respondent.

OPINION

[227 Mo.App. 863] SHAIN, P. J.

This is an action to recover a balance on cash rent on a farm in Nodaway County, Missouri.

J. Ed Costello as plaintiff below, appellant herein, commenced the action against J. Dale Ashford, defendant below. Ashford, in his answer, admitted the debt but further set up the plea that the rent money was claimed by the Equitable Life Insurance Company of Iowa, a corporation, and Ashford asked that he be permitted to pay the money into court and further asked an order that the Insurance Company interplead. By permission of the court the amount of $ 442 was paid into the court and an order was made and thereafter the Equitable Life Insurance Company of Iowa, respondent herein, duly filed its interplea and the issue, under the interplea, was tried before the court, jury being waived, and by the judgment of the court the money was awarded to the Insurance Company. From this judgment, Costello appealed and the cause is duly before this court for review.

The facts are that Costello, hereinafter referred to as appellant, owned a large farm in Nodaway County, Missouri. On this farm he secured a loan from the Equitable Life Insurance Company of Iowa, hereinafter referred to as respondent. The amount of this loan was $ 18,000 and to secure same the plaintiff had duly executed a deed of trust on his aforesaid farm.

The plaintiff, after the execution of the trust deed, rented the farm to the defendant, Ashford, for crop rent and for cash rent in the amount of $ 642, payment deferred.

[227 Mo.App. 864] Thereafter, the plaintiff became in default and to secure an extension of time executed "as additional security" an assignment of the rental lease to the respondent.

Thereafter, the plaintiff made further default and the respondent began foreclosure proceedings under the deed of trust. During the pendency of the foreclosure proceedings there is shown negotiations between the plaintiff and the agents of the respondent looking to an adjustment whereby the plaintiff could save his farm. The plaintiff failing in his plans foreclosure was had by sale of the farm on February 6, 1932. At this sale, the respondent bid the full amount computed as due from the plaintiff to the respondent.

The question here involved is as to the agreement, if any, had between the plaintiff and the respondent prior to the sale concerning the rent money. The respondent contends that there was an understanding had with the plaintiff, wherein their bidding of the whole amount of the debt was based upon an agreement with the plaintiff that the respondent was to receive the balance of cash rent due from the defendant, Ashford. It appears that $ 200 had been paid prior to foreclosure and duly credited on the debt, leaving a balance of $ 442. The plaintiff contends that there was no such agreement as above, and that as the entire debt was wiped out when the respondent purchased the farm on a bid equaling the full amount of the debt, that he is entitled to receive the rent money.

It stands undisputed, that the original assignment of the rent was for additional security. The issue, therefore, rests entirely upon the fact as to whether or not there was an inforcible agreement entered into between

Page 756

the plaintiff and the respondent to the effect that the respondent should receive the rent in consideration of bidding the full amount of the debt.

The trial judge decided that there was shown, by the evidence, such an agreement and upon such finding gave judgment for the respondent. It follows, that as the...

To continue reading

FREE SIGN UP