Betzler v. James

• Decision Date: 31 March 1910
• Citation: 227 Mo. 375,126 S.W. 1007
• Parties: BETZLER et al. v. JAMES.
• Court: Missouri Supreme Court

126 S.W. 1007

227 Mo. 375

BETZLER et al. v. JAMES.

Supreme Court of Missouri, Division No. 2.

March 31, 1910.

1. APPEAL AND ERROR (§ 524) — RECORD — BILL OF EXCEPTIONS — DEED OF TRUST.

Under Rev. St. 1899, § 866, as amended by Acts 1903, p. 105 (Ann. St. 1906, p. 815), providing that it shall not be necessary for a review of the action of any lower court that any written matter, offered in evidence on the trial and properly identified and deposited with the clerk to remain in his custody until after the determination of the cause in the appellate court, shall be set forth in the bill of exceptions, provided the bill of exceptions contains a direction to the clerk to copy the same, a deed of

trust under which foreclosure was had, introduced in evidence in an action of ejectment, which was not set forth in the bill of exceptions, there being no direction of the clerk to copy it into the record, and it was not so copied, is not before the appellate court for construction.

2. MORTGAGES (§ 341) — FORECLOSURE — POWER OF SALE.

Under a deed of trust securing a note, and providing that, in case of default in payment and death of the trustee, "the then acting sheriff" at request of the legal holder of the note may sell the property, etc., the acting sheriff at the time of foreclosure, and not the acting sheriff at the time of default, is the proper person to sell.

3. MORTGAGES (§ 369) — FORECLOSURE SALE — INADEQUACY OF PRICE.

Where property is sold under a deed of trust by the acting sheriff, as provided in the deed, at the regular and customary time, nothing being done to prevent bidding, and the sale only being made after repeated efforts to obtain settlement, and the successful bidder refuses to buy on account of unpaid taxes, and the sale is reopened and another sale fixed by public outcry, bidders being present, and the property regularly sold, that the property, which was worth $6,400, was sold for $275 is not sufficient ground for setting aside the sale.

4. ACTION (§ 24) — EQUITABLE DEFENSES — NATURE OF PROCEEDING.

Where an answer to a petition in ejectment sets up equitable defenses, the action is converted into an equitable proceeding, in which such relief may be granted either party as the equities of the case warrant.

5. EQUITY (§ 3) — INEXCUSABLE NEGLECT.

The power of a court of equity is not to be exercised to relieve a party or other person from the consequences of his own inexcusable neglect.

6. MORTGAGES (§ 369) — FORECLOSURE SALES — SETTING ASIDE — EQUITABLE PROCEEDING — RELIEF TO UNSUCCESSFUL PARTY.

Where, in an action of ejectment, converted into an equitable proceeding by the answer setting up the equitable defense that the deed of trust, under which the foreclosure sale was had through which plaintiff claimed, should be set aside for inadequacy of consideration, etc., defendant repeatedly refused to pay the notes secured by the trust deed, though he could have paid it without interest, and attempted to satisfy it by giving an "insolvent note," and deliberately let the premises be sold believing that he could set it aside for insufficiency of description in the notice, he is not entitled to any consideration from the court of equity, though the land, worth $6,400, was sold for $275.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Ejectment by Q. Betzler and another against A. J. James. From a judgment for defendant and impressing a lien on the land in favor of plaintiffs, both parties appeal. Reversed, and judgment ordered for plaintiffs.

Louis Benecke and Lozier, Morris & Atwood, for plaintiffs. J. A. Collet, for defendant.

BURGESS, J.

This is a suit in ejectment to recover the N. W. ¼ of section 15, township 53, range 20, in Carroll county, Mo., and described in plaintiffs' petition by metes and bounds. The suit was instituted against James M. Farrell, who answered, admitting that he was in possession of the land sued for, as tenant of A. J. James. Defendant James was made a party defendant on his own motion, and filed his answer admitting that he was, by his tenant, in possession of the premises sued for, and setting up that he was the absolute owner of said land. The defendant, in his said answer, tendered the following defenses: First. That plaintiffs' only claim of right or interest in the land sued for was based upon a deed executed by George H. Magee, sheriff of Carroll county, acting trustee, executed on the 11th day of August, 1905, by which he, as trustee, undertook to sell to plaintiffs, for the consideration of $275, the lands in question, for the purpose of satisfying and paying off a note of $150 executed by defendant James on the 28th day of December, 1894, payable to Charles Hammond; that said note was given in payment of professional services to be rendered by the said Hammond to the defendant; that said Hammond died before said services were rendered, and that thereby the consideration for said note wholly failed; that said note was transferred after maturity to one Thaddeus Griffin as security for another note owed by the said Charles Hammond to the said Griffin; that the said Griffin took said note with full knowledge of its aforesaid infirmity; that after his death, his administrator, with knowledge of all the aforesaid facts, caused the deed of trust securing said note to be foreclosed, and that plaintiffs, with knowledge of all the facts in relation to the execution of said note and of the failure of consideration as aforesaid, purchased said land at said foreclosure sale. Second. That the acting trustee did not use due diligence, care, and caution to procure the highest possible price for said land, in that the sale was not made at the usual and ordinary hour for making such sales, but at a later hour, and at the time said land was sold there were practically no bidders, by reason of which the land, which the defendant avers was worth not less than $6,400, was sold to plaintiffs for $275. Third. That the said G. H. Magee, sheriff, undertook to and did act as trustee in the foreclosure of said deed of trust under the following provision of said deed of trust: "Now, therefore, if the said parties of the first part, or any one for them, shall well and truly pay off and discharge the debt and interest expressed in said note, and every part thereof, when the same becomes due and payable according to the true tenor, date and effect of said note, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but should the said first parties fail or refuse to pay the said note, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable according to the true tenor, date and effect of said note, then the whole shall become due and payable, and this deed shall remain in force; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of Carroll county, Missouri, at the request of the legal holder of said note, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue to the highest bidder," etc. That said note became due on the 28th day of December, 1895, and that thereafter, on the 21st day of October, 1902, John Knappenberger, trustee named in said deed of trust, died. That upon the date of the death of the said John Knappenberger, I. C. Cruzen was the then acting sheriff of Carroll county, Mo. That the said G. H. Magee, who undertook to sell said land, was not the acting sheriff of Carroll county, Mo., at the time of the death of the said Knappenberger, or for a long time thereafter, and was therefore without authority to act as trustee in the making of said sale. To this answer the plaintiffs filed reply, denying all the matters of defense contained in said answer.

The evidence shows that on December 28, 1894, defendant James executed his promissory note for $150, payable to Charles Hammond, an attorney at law. By its terms, the note became due one year after date, and it was secured by a deed of trust executed by defendant James and his wife, conveying the land in question to John Knappenberger, trustee, for the use of said Hammond. Said deed of trust was not copied or preserved in the bill of exceptions, nor is it shown that there was any direction to the clerk to copy the same therein; but, with reference to the trust deed, the bill of exceptions contains the following recital: "Plaintiffs' counsel offered and read in evidence trust deed, dated December 28, 1894, executed by A. J. James and Mary E. James, his wife, to John Knappenberger, trustee, for the use of Charles Hammond, conveying the land described in plaintiffs' petition, in trust, to secure the payment of a note for $150, therein described, payable to the order of Charles Hammond, said trust deed having been acknowledged on the same date before Louis Benecke, notary public, and having been filed for record in the office of the recorder of deeds within and for Carroll county, Mo., on May 31, 1895, and duly recorded in the records of said office in Book 122, at page 213, marked `Plaintiffs' Exhibit 1.'" The note in question, which became due December 28, 1895, was assigned by Hammond, some time after its execution, to Thaddeus S. Griffin, as security for a note which Griffin held against Hammond for a like amount. Hammond died December 30, 1897; John Knappenberger, trustee, died October 21, 1902, and Thaddeus S. Griffin, holder of the note against the defendant, died March 29, 1905. Morganza Griffin, brother of Thaddeus S. Griffin, was duly appointed administrator of his deceased brother's estate, and the said note was found among the assets of said estate.

The evidence shows that Morganza Griffin, the administrator, had several conversations with the defendant with reference to the payment of the note in question, in none of which...