Betzler v. James
| Decision Date | 31 March 1910 |
| Citation | 126 S.W. 1007,227 Mo. 375 |
| Parties | Q. BETZLER and L. G. CLARK, Appellants, v. A. J. JAMES, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.
Reversed and remanded (with directions).
Louis Benecke and Lozier, Morris & Atwood for plaintiffs appellant.
(1) The trust deed under which the foreclosure sale was made is not before this court for construction. The provisions of said trust deed were not preserved in the bill of exceptions and the question as to whether the sheriff, Magee, was the proper person under the provisions of the trust deed to conduct the foreclosure sale, is not before this court for review. It will be observed that there is no direction to the clerk to copy the trust deed in the bill of exceptions, and the same was not copied into the record, and is not before this court for review. R. S. 1899, sec. 866, amended, Laws 1903, p. 105; Ryan v. Growney, 125 Mo. 474; State v Griffin, 98 Mo. 672; Quail v. Lomas, 200 Mo 674. (2) Nevertheless, such sale was not void, but was made by the person authorized to execute the powers of the trust deed. In the McNutt case the decision hinged on the double use of the word "then" and the word "thereupon," and we insist that, when the language of the two instruments is considered, the McNutt case does not militate against our position in the case at bar.(3) To justify the court in setting aside a foreclosure sale for inadequacy of consideration, there must be some fraud or unfair dealing; some deceit practiced upon, or some unfair advantage taken of the mortgagor. These elements are absent from the case at bar. Equity will not relieve a person from the effects of his intentional neglect, trick or duplicity. Hoffman v. McCracken, 168 Mo. 345. (4) Plaintiffs were purchasers at the foreclosure sale under a deed of trust. They brought suit in ejectment against the mortgagor. The answer sets up an equitable defense, which answer converts the action into an equitable proceeding, in which such relief may be granted either litigant as the equities of the case may warrant, even in the absence of prayer for such relief. Dunn v. McCoy, 150 Mo. 548; Swon v Stevens, 143 Mo. 384; Allen v. Logan, 96 Mo. 591; Shuster v. Shuster, 93 Mo. 438; O'Day v. Conn, 131 Mo. 321; Fisher v. Stevens, 131 Mo. 181. (5) The trial court very properly required defendant to discharge the mortgage indebtedness, interest and taxes, as a condition precedent to his right to redeem, even though he did not ask to redeem, but did ask to have the mortgage annulled and cancelled and the foreclosure sale annulled and set aside. 1 Bouvier's Law Dictionary (14 Ed.), p. 536; 20 Am. and Eng. Ency. Law (1 Ed.), pp. 608, 620, 621, 622; 2 Pingrey on Mortgages, sec. 2179. One who redeems from the mortgage must pay the whole amount of the debt, although the land sold for a less sum. 2 Pingrey on Mortgages, sec. 2184; Collins v. Riggs, 14 Wall. (U.S.) 491; Hosford v. Johnson, 74 Ind. 479; Powers v. Golder Lumber Co., 43 Mich. 468; Martin v. Fridley, 23 Minn. 13; Johnson v. Harmon, 19 Ia. 56; Bradley v. Snyder, 14 Ill. 263; Gage v. Brewster, 13 N.Y. 218; Raynor v. Selmes, 52 N.Y. 579; Axman v. Smith, 156 Mo. 286; Dwyer v. Rohan, 99 Mo.App. 120; Swon v. Stevens, 143 Mo. 384.
J. A. Collet for defendant appellant.
(1) The sale made by Geo. H. Magee, under which plaintiffs claim title, was absolutely void. By the provisions of the deed of trust executed by James, upon the death of John Knappenberger, the trustee therein named, the note secured by the deed of trust being then past due, I. C. Cruzen, who was then sheriff of Carroll county, succeeded to the trust and became invested with the legal title to the land conveyed by the deed of trust. This title being held by him personally and not officially, he continued the rightful trustee after the expiration of his term of office and until he became disqualified by some act of his, and upon his becoming disqualified a trustee would have to be appointed. Geo. H. Magee never had any authority whatsoever to act as trustee, hence the sale and deed made in consequence of the sale are both void. State ex rel. v. Davis, 88 Mo. 585; McNutt v. Ins. Co., 181 Mo. 94; Harwood v. Tracy, 118 Mo. 631. (2) The sale made by Magee was void for the further reason that the price bid for the land was so grossly inadequate as to shock the moral sense. Under such circumstances the sale, though regular and made by the proper person, will be held void. Hagan v. Bank, 182 Mo. 319; Bank v. Richardson, 156 Mo. 270; Vail v. Jacobs, 62 Mo. 130; Hoffman v. McCracken, 168 Mo. 337; Hardware Co. v. Brownlee, 186 Mo. 621. (3) The evidence shows that the note, to secure which the deed of trust in question was given, was given to pay an attorney's fee and that the attorney died before the services were rendered, and that thereby the consideration for the note failed; that Benecke had knowledge of these facts before the sale was made, and advised with the record plaintiffs before the sale was made, and immediately after the sale, became jointly interested with plaintiffs, if in fact he was not joined in interest with them before the sale was made. These facts are sufficient to charge plaintiffs with notice of the infirmity of the note. The court's finding that the note had been assigned to Griffin for value and before maturity would relieve plaintiffs' case of its weakness resulting from this failure of consideration, if the finding could be upheld, but that finding is not supported by a syllable of evidence. Where the finding of the trial court is not supported by evidence, it will be disregarded by this court. Kilpatrick v. Wiley, 197 Mo. 123. (4) The judgment rendered against James for the payment of the Hammond note and the costs incurred in the attempted execution of the deed of trust, is erroneous for two reasons: First, because there was no issue of that kind involved in the case, and a judgment not responsive to the issues tendered will not be upheld. Schneider v. Patton, 175 Mo. 684; Roden v. Helm, 192 Mo. 71; Dawkins v. Griffin, 195 Mo. 430; Kilpatrick v. Wiley, 197 Mo. 123. Second, because the judgment was rendered, in part at least, in favor of a person who is a stranger to the suit, and is an attempt to adjudicate matters not involved in this litigation and between parties, one of whom is not a party to this suit. This cannot be done. Manewal v. Proctor, 112 Mo.App. 315.
This is a suit in ejectment to recover the northwest quarter of section 15, township 53, range 20, in Carroll county, Missouri, 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 eleventh 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 $ 6400, 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...
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