Blades v. Ossenfort
| Decision Date | 23 May 1972 |
| Docket Number | No. 34274,34274 |
| Parties | Leo V. BLADES and Mary Blades, his wife, Plaintiffs-Respondents, v. A. D. OSSENFORT and M. Ossenfort, a/k/a Mildred Ossenfort, d/b/a Ossenfort Realty Company, and George Foster, Defendants-Appellants. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Sumner, Hanlon, Sumner, MacDonald & Nouss, St. Louis, for defendants-appellants.
Hanks & Bornschein, Clayton, for plaintiffs-respondents.
This is an appeal by the purchaser at a deed of trust sale and the trustee of a deed of trust from a judgment of the circuit court of St. Louis County entered on April 19, 1971 which granted the mortgagor-grantor the right to redeem the property upon condition that the grantor make payment of the debt and foreclosure costs. The judgment further denied the right of the purchaser at the trustee's sale to recover the premises. Cause No. 314061 was a suit filed by George Foster, the purchaser at the trustee's sale to recover the premises purchased and Cause No. 313993 was a suit to set aside the trustee's deed brought by Mr. and Mrs. Blades against Foster and Mr. and Mrs. A. Dudley Ossenfort. These causes were consolidated by the court in November, 1970. Trial commenced on February 16, 1971.
The grantors-mortgagors, Mr. and Mrs. Leo F. Blades (hereinafter referred to as the Blades) on or about April 18, 1968 executed a second deed of trust on lot 27 of Forestate subdivision, known and numbered as 7235 Forestate Drive in St. Louis County, to secure a loan of $2,000. The loan was arranged by A. Dudley Ossenfort of the Ossenfort Realty Co., and who is the husband of the trustee Mildred Ossenfort, employed by Schwaller Real Estate. Mr. and Mrs. Blades executed six promissory notes payable to Henry and Edna Tieman, truck gardeners, calling for payments on October 18, 1968 and every six months thereafter. The first note was paid, although somewhat late, and the second note was due and payable April 18, 1969. Several notices were sent by Mr. Ossenfort, acting on behalf of the Tiemans, calling attention to the fact that the April, 1969 note was due. When payment was not forthcoming on the second note, Mr. Ossenfort 'turned' the matter over to the trustee, Mrs. Ossenfort, in May, 1969. When informed that the Blades were in default, she took the necessary steps, advertised the premises in the Watchman-Advocate for trustee's sale, and eventually cried the sale on the courthouse steps on June 10, 1969. The purchaser at the sale was George Foster (appellant), and one of the defendants in the Blades' action to set aside the trustee's deed, and who also was the plaintiff in an action against the Blades to recover the possession of the property he allegedly purchased at the sale. Mr. Blades was present at the sale, accompanied by his attorney. At the sale, a notice of intent to redeem was given to the trustee by Mr. Blades. Foster bid $2,000 for the property and assumed the first mortgage which was held by George Roeder. Foster and Mrs. Ossenfort testified that Foster purchased the property on his (Foster's) own behalf, 'to live in,' 'to get a home for my wife and myself.' After the trustee's sale, Mrs. Ossenfort issued a trustee's deed in favor of Foster which was recorded in September, 1969. The trustee's deed showed the address of George Foster, as 4621 Macklind Ave., the same address as the Ossenfort Realty Co. At the time of the sale there was a balance due of $2,064.13. Foster testified that he came to the courthouse on June 10, 1969 for the purpose of bidding on the property, that he was the only one who did so, that he did not buy the property 'for or on behalf of Mr. and Mrs Tieman,' nor Mrs. Ossenfort; that he obtained knowledge of the sale 'through the Ossenforts' who he had known about three weeks before the property came up and that he paid the sum of $2,000 which his father gave to Mr. and Mrs. Ossenfort. He further testified that he had no financial interest on the deed of trust nor the notes. He has offered monthly payments to the holder of the first deed of trust since the foreclosure sale, but the check is returned because Mr. Blades makes the payments.
Mrs. Blades testified that she signed the deed of trust, but not in Ossenfort's office as testified to by Ossenfort, and that in February, 1970, Mr. Blades had a check in the maount of $2,000 drawn on Manchester Bank; that she had a conversation by telephone with Mrs. Ossenfort to get 'this straightened up before he (husband) went in the hospital,' but that Mrs. Ossenfort said she didn't know who bought the property but that Mrs. Blades would be notified in plenty of time, apparently to redeem the property. Mrs. Blades said that she did not know that the home was being foreclosed until she got a letter from the man who owned the first deed of trust and that Foster never made a demand for payment. After she received notice from the holder of the first deed of trust apparently in August, 1969, she spoke to Mrs. Ossenfort and she said the only reason she had to foreclose was because the man that held the first deed of trust was in bankruptcy and she 'had to secure her investment.' Mrs. Blades did not offer any amount of money due before February, 1970, but she told Mrs. Ossenfort that she had the money. She slao testified that she never received any schedule of payments to be made under the deed of trust.
The testimony of Mr. Blades showed that when he wanted to make a loan on the property he went to the Schwaller Real Estate Company to obtain a second deed of trust and spoke to Fred Schwaller and Mildred Ossenfort overheard the conversation and thereafter she told him that her husband (Dudley) could place the loan to 'forget about Fred Schwaller, deal with her husband, not Fred Schwaller.' Later he received a loan from Mr. Ossenfort, paid, as he said, $100 in a tavern under the table for the loan.
One or two days prior to the foreclosure sale, Mr. Blades was told by Mrs. Ossenfort that the property was to be foreclosed and 'for me to come by her office and that she would type up a letter; I could redeem my property.' She said, 'I don't want your property, I will work it out with you.' Blades told her, 'Well, can I pay my note now?' and she replied 'No, your house is going to be foreclosed; there is nothing I can do to stop it.' Mr. Blades said he had the cash, and talked to Mr. Ossenfort about stopping the foreclosure and was 'going to talk to her (Mildred) see if he could stop the foreclosure.' Mr. Ossenfort wanted to accept the money and stop the foreclosure, but 'Mildred says it was too late.'
The first mortgage was for $15,000; there was still a balance of $11,500 at the time of trial.
After the sale, Mr. Blades obtained a redemption bond which was subsequently challenged by Mrs. Ossenfort.
In February, 1970, Mr. Blades had a cashier's check in the amount of $2,000 and took it to Mrs. Ossenfort whom he met on the parking lot of Schwaller Co. and told her he had the money to pay the loan; he showed it to her but her reply was she didn't know 'who I should pay it to; she says, 'Go and ask the Court," Mr. Blades offered 'her the payment twice.' At that time she refused the check saying, 'Honey, you lost your house; that is it.'
On another occasion, in April, 1969, according to his testimony he offered to pay the obligation at the race track at Cahoika, Illinois. He also testified that on several occasions he offered payment to Mildred but she always told him she did not know who bought the house at foreclosure.
The house, according to the evidence of Blades, had a market value of $32,500; that he was offered $28,500.
In the pleadings and at trial, the Blades tendered to defendants the amount of the loan and interest thereon and any other reasonable costs that they have incurred in the trustee's sale.
Trial was held and on April 19, 1971, the court rendered judgment for Blades in cause No. 314061 (Foster v. Blades) and in cause No. 313993 rendered judgment granting the Blades the
Following timely motions for new trial, which were overruled, the Ossenforts and Foster perfected their appeals to this court.
It is the contention of the appellants that the grantors of a deed of trust do not have a right of redemption under § 443.410 1 unless the purchaser at the sale is either the holder of...
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