Anderson v. Taylor

• Decision Date: 15 December 1920
• Docket Number: No. 20838.,20838.
• Citation: 227 S.W. 84
• Parties: ANDERSON et al. v. TAYLOR et at.
• Court: Missouri Supreme Court

227 S.W. 84

ANDERSON et al. v. TAYLOR et at.

No. 20838.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Suit by Gordon A. Anderson against D. C. Taylor and others, in which the National Surety Company intervened. Decree for defendants, and plaintiff and intervener appeal. Affirmed.

This suit (in equity) was begun in the St. Louis county circuit court on April 21, 1916, by Gordon A. Anderson filing a petition in his capacity as trustee and administrator of the estate of Andrew Anderson, deceased, against D. C. Taylor et al. The prayer of the petition is in the alternative (1) for the cancellation of a trustee's deed and various other deeds subsequent thereto, and for redemption, and (2) if plaintiff has misconceived, and is not entitled to the remedies prayed for in the first alternative, then that defendant D. C. Taylor be held as trustee for the profits and for an accounting of the profits made on a resale for the land hereinafter set out. The petition of plaintiff was prepared by the attorneys of the National Surety Company, the intervening plaintiff in this cause, and was filed by an attorney named by the attorneys for said surety company. After this was done two of said surety company's attorneys, viz. Mr. Thos. W. White and Mr. Walter R. Mayne, presented same to defendant D. C. Taylor, with the request that said Taylor pay to said surety company the sum of $10,500, which he refused to do. On October 7, 1913, Andrew Anderson and his wife conveyed the following described property in the county of St. Louis, Mo., to wit:

"All that part lying north of the Clayton road of the northwest fractional quarter of section nineteen (19), in township forty-five (45), north of range 5 east, excepting therefrom the 13-acre tract lying in the southeast corner thereof conveyed to Beck by deed of record in book 177, at page 386; a strip 12 feet wide along the west line of said Beck tract, conveyed to N. Rhul by deed of record in book 344 at page 209, St. Louis county (now city) records. The tract hereby conveyed containing about ninety acres"

—to David Schmid, as trustee, for W. H. Roth to secure the payment to said Roth of $10,000 together with 60 interest coupons, all bearing 6 per cent. interest. Said coupons were payable semiannually, in April and October of each and every year. Said deed of trust was duly recorded in the land records of said county.

Andrew Anderson, during his lifetime; was a contractor and builder, and had the contract for building the power house of the Missouri state capitol. In connection with which intervening plaintiff, National Surety Company, executed a bond for said Anderson to the State of Missouri in the sum of $22,000, conditioned to hold the state harmless in the event of failure oil the part of said Anderson to complete said work in accordance with his contract. To secure said National Surety Company on said bond said Anderson and Anna J. Anderson, his wife, on January 24, 1914, executed a second deed of trust to Leslie J. Nichols, as trustee, for said surety company, which covered the land above described, which was duly recorded in the land records of said county. Subsequently, and before the completion of said contract, said Anderson's health failed him to the extent that he was forced to abandon work, and his contract with the state was completed by his son, Gordon A. Anderson. On January 9. 1915, Andrew Anderson and his wife made a quitclaim deed to Gordon A. Anderson, in which the land above set out, subject to all incumbrances of record, was conveyed in consideration of $1 and love and affection they bore towards their son, which was also duly recorded. Andrew Anderson died in March, 1015, and at the time did not have or own any interest in said land. Default had been made in the payment of the interest due on the notes secured by the deed of trust first above mentioned, and the same was declared forfeited, and at the request of the legal holder thereof was duly advertised for sale, and was sold pursuant to said notice on December 24, 1915, and, defendant D. C. Taylor being the highest and best bidder at the price and sum of $10,000, said land was sold to him, and on the same day he received his trustee's deed therefor, and had the same duly recorded in the land records of said county.

Intervening plaintiff, National Surety Company, never foreclosed its second deed of trust, but relies on the following as set forth an its petition for the relief above stated:

"Intervening plaintiff, National Surety Company, further states that before said National Surety Company took the second deed of trust on said property it had an understanding and agreement with said defendant D. C. Taylor that said D. C. Taylor would personally notify Fordyce, Holliday and White, attorneys for the National Surety Company, when any default took place under the deed of trust securing the notes held by said D. C. Taylor, and that said D. C. Taylor would not foreclose on said property without first giving personal notice to said attorneys, and affording them the opportunity and privilege of paying said first deed of trust; and it was further agreed between said D. C. Taylor and said National Surety Company that in the event of any default under either one or both of said mortgages they would work together for the disposition of said property for the best interest of all concerned, and it was further understood that said surety company was ready and willing at all times to pay all taxes and interest and any other amounts due under the first deed of trust. Intervening plaintiff, National Surety Company, further states that subsequent to the execution of said deed of trust above mentioned said D. C. Taylor and said attorneys for the National Surety Company agreed to work together for the sale and disposition of the property covered by said deed of trust for the best interest of all concerned, and particularly for the best interest of Gordon A. Anderson; that it was further understood and agreed that neither party should foreclose on said property without first giving personal notice to the other. It was further agreed that said D. C. Taylor would, in case of default in the interest and taxes on said property under the first deed of trust, immediately call on and personally notify said attorneys for the National Surety Company, who were ready and willing to pay all defaults under said first mortgage."

The averment above, as well as all the averments of said petition, was generally denied by all of the defendants. It will be seen that the issue thus raised was one of fact.

The sale under said first deed of trust was advertised, as required by law, in the Watchman-Advocate, a weekly newspaper printed and published at Clayton, the county seat of St. Louis county, and in addition thereto the St. Louis Daily Record, published in the city of St. Louis, contained a synopsis of the proposed sale, which first appeared in the issue of December 6, 1915, and continued under appropriate headlines until the day of sale. Said synopsis set forth the land to be sold, its location, and the number of acres involved. The attorneys for intervening plaintiff regularly took said Daily Record covering the time of the advertisement and sale of said property.

On February 14, 1916, Gordon A. Anderson made a quitclaim deed to D. C. Taylor, conveying all of his right, title, and interest in and to the above-described land, for the price and sum of $100, which conveyance was duly recorded in the land records of said county.

Robert J. Kratky and A. Brackman, both of St. Louis, for appellant Gordon A. Anderson.

Fordyce, Holliday & White of St. Louis, and Hereford & Nolte, of Clayton, for appellant National Surety Co.

Wm. H. McClarin, of Tulsa, Okl., for respondents Sacks and Sansone.

A. E. L. Gardner and Henry Higginbotham, both of Clayton, for all other respondents.

MOZLEY, C. (after stating the facts as above).

1. In finding a decree for the defendants upon the petition and intervening petition and dismissing both with costs, Judge John W. McElhinney, who tried the case, rendered the following opinion, which we take the liberty to adopt as the opinion here; it appearing to us to be in all things right and just:

"The property, sold at the trustee's sale in question for $10,000, was of the reasonable and market value of $17,500. It was a farm of 60 acres situated in a farming community, 10 or 12 miles from the limits of the city of St. Louis, 4 miles from any railroad station, and still further from a trolley line, with an old house upon it, which had been remodeled so as to make it attractive. Its location and appearance were such as to give it what is called a speculative value; that is, persons of means from the city of St. Louis might be induced to purchase it for a country home at a price considerably in excess of its value as a farm. This value was very uncertain, and did not add anything considerable to its actual market value. The defendant Taylor was so fortunate as to sell for a price based upon such a speculative value. But the value is not to be considered as his selling price, unless his relation to the plaintiffs or one of them was such that he should be compelled to account as trustee.

"2. The defendant Taylor and his trustee, Mr. Schmid, were within their legal authority in requesting and making the sale. The interest notes,...