Baker v. Cunningham

• Decision Date: 12 February 1901
• Citation: 162 Mo. 134,62 S.W. 445
• Parties: BAKER et al. v. CUNNINGHAM et al.
• Court: Missouri Supreme Court

62 S.W. 445

162 Mo. 134

BAKER et al. v. CUNNINGHAM et al.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

MORTGAGES — RENTS AND PROFITS — DUTY OF MORTGAGEE TO ACCOUNT — EXTINGUISHMENT OF DEBT — NOTICE OF FORECLOSURE — LACHES.

1. A mortgagee took possession of the land, and for the year 1879 received $80 rent, for 1880 $100, and from 1884 to 1893 produce, as to the amount of which the mortgagor's testimony was vague and uncertain, but which the mortgagee's evidence placed at $30 a year for the years 1890 to 1893. It was not shown how much rent was received from 1875 to 1879, or from 1888 to 1894, but the mortgagor's evidence tended to prove the land would rent for $100 per year; and also declarations of the mortgagee that it yielded him that much. Held, that accepting the basis of $100 a year for the eight years unaccounted for, the evidence did not show that in 1894 the rents had extinguished the debt, which at that time, together with taxes and interest, amounted to $1,739.97.

2. Where a notice of foreclosure named the parties and book and page of the records where the mortgage was recorded, which was the only mortgage on the land ever executed by these mortgagors, a mistake in the notice as to the time of its execution was immaterial.

3. Where a mortgagor knew that his debt was extinguished by the rents, but stood by and permitted the land to be sold under foreclosure, and suffered judgment in unlawful detainer, and made no claim that the debt was paid till two years thereafter, and after the mortgagee was dead, he was guilty of laches preventing him from maintaining a bill to cancel the sheriff's deed.

Appeal from circuit court, Johnson county; W. W. Wood, Judge.

Suit by Sarah E. Baker and others against Rachel W. Cunningham and others. From a decree for plaintiffs, defendants appeal. Reversed.

J. W. Suddath, for appellants. Chas. E. Morrow, for respondents.

MARSHALL, J.

This is a suit in equity to cancel a trustee's deed, and to revest title in the plaintiffs. The plaintiff Sarah E. Baker was formerly the wife of Alexander McCausland, and now the wife of William Baker, and a daughter and one of the devisees under the will of James F. Cunningham, and her coplaintiffs are her children begotten of her marriage with Alexander McCausland, and the defendants are the widow and other children of James F. Cunningham and his executor and the other legatees under his will. The facts are these: On the 20th day of March, 1871, Alexander McCausland was the owner of the S. E. ¼ of the S. W. ¼ of section 24, township 45, range 29, containing 40 acres, and of an undivided one-half interest in 15 acres off of the south end of the E. ½ of the S. E. ¼ of the same section, township, and range, in Johnson county. On that day he executed his negotiable promissory note for $390 to the order of David Davenport, payable 12 months after date, with 10 per cent. interest after maturity, and secured the same by a deed of trust on the said land, naming Francis M. Cockrell as trustee. When the note fell due, McCausland was unable to pay it, or any part of it, and so the matter stood up to 1874 or 1875. At that time John Newton had acquired the note and deed of trust, and was threatening to foreclose. McCausland induced his father-in-law, James F. Cunningham, to purchase the note from Newton. McCausland went west, and joined a surveying party, which was lost, and the last that was heard from him was in June, 1879. Cunningham entered into possession of the land when McCausland left, and rented it and controlled it thereafter. From 1875 to 1877 the property was worked by Mage Cunningham. In 1877 it was rented to John R. White. In 1879 and 1880 it was rented to Glover. From 1880 to 1884 it was rented to Robinson & Seamonds. From 1884 to 1894 Mrs. McCausland and her children occupied it. The defendants' evidence tends to prove that they paid no rent from 1884 to 1890, and that from 1890 to 1894 they paid an average of $30 a year rent. In 1894 they refused to pay any more rent, and Cunningham caused the deed of trust to be foreclosed, and received a trustee's deed therefor, which is the deed sought to be canceled. Cunningham then instituted unlawful detainer proceedings against the McCauslands, and ejected them from the premises. Cunningham died in May, 1896, and this suit was begun on the 7th of August, 1896. Cunningham paid the back taxes on the land for the years 1870 to 1873, inclusive, amounting to $288.35, and after he took possession in 1874 he paid the taxes and repairs until he died, amounting, according to defendant's evidence to $289.94, and according to the plaintiff's evidence to $230.62. The plaintiff introduced testimony tending to show that the land would reasonably rent for $2.50 an acre a year, and that Cunningham swore in the unlawful detainer case that he had collected on an average of $100 a year rent; also evidence tending to show that while the McCauslands occupied it they set apart one-third of the crop each year for Cunningham's rent, and that the land would yield 15 bushels of wheat a year, worth 80 cents a bushel, and 25 bushels of corn, worth 25 cents a bushel, and that the neighbors had seen the McCausland boys hauling corn in the direction of Cunningham's house during years from 1884 to 1894; also evidence tending to show that for the year 1879 Cunningham received $80 rent for the place from Cook, and for the year 1880 he received $100 from Cook. (Other witnesses testified that for the years 1879 and 1880 the place was rented to a man named Glover). The petition charges that Cunningham collected $100 a year rent from 1877 to 1884, and that from 1884 to 1893, inclusive, the plaintiffs occupied the land as tenants of said Cunningham, and paid him in wheat, flax, corn, and oats, "the exact amounts for each year being unknown, but of the reasonable value of $100 per year." The plaintiffs predicate their right to relief on two grounds: First, that in the trustee's advertisement the deed of trust was described as having been executed in 1874, whereas in fact it was executed in 1871; second, that Cunningham entered into possession of the property under an agreement with McCausland that he would apply the rents, issues, and profits upon the debt, and that before the foreclosure such rents, issues, and profits amounted to more than enough to pay off and discharge the debt, and hence the sale under the deed of trust was unauthorized, and conveyed no title; and the plaintiffs prayed for an accounting, for a cancellation of the trustee's deed to Cunningham, and for a judgment over for $1,050 against the estate of Cunningham. The defendants, on the contrary, claim that Cunningham only received rent from the place from other parties for two years, and from the plaintiffs for four years, and that, after deducting the rents so received, there was due Cunningham at the time of the foreclosure, for principal and interest and taxes paid by him, the sum of $1,736.73. The trial court decided the first contention against the plaintiffs, but sustained the second, and found that James F. Cunningham, prior to the foreclosure, received from the rents, issues, and profits, under an agreement to apply them upon the payment of the debt, an amount more than sufficient to pay off the debt, interest, and taxes, and therefore entered a decree canceling the trustee's deed, and revesting the property in the plaintiffs. The court did not state the account, but made a finding as stated. After proper steps, the defendants perfected this appeal.

1. The petition charges that Cunningham was let into possession in 1875 by McCausland, under an agreement that he would apply the rents, issues, and profits to the payment of the...