Bloss v. Gray

• Decision Date: 03 April 1931
• Citation: 37 S.W.2d 975,225 Mo.App. 419
• Parties: H. H. BLOSS, RESPONDENT, v. HOWARD GRAY, TRUSTEE, F. B. WILLIAMS AND ELIZA R. ROOS, APPELLANT
• Court: Missouri Court of Appeals

37 S.W.2d 975

225 Mo.App. 419

H. H. BLOSS, RESPONDENT, v. HOWARD GRAY, TRUSTEE, F. B. WILLIAMS AND ELIZA R. ROOS, APPELLANT

Court of Appeals of Missouri, Springfield

April 3, 1931

Appeal from the Circuit Court of Barry County.--Hon. Emery E. Smith Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Howard Gray for appellant.

H. H Bloss for respondent.

COX, P J. Bailey and Smith, JJ., concur.

OPINION

COX, P.J.

Action to enjoin foreclosure of a deed of trust. The finding and judgment were in favor of plaintiff and defendants appealed.

There is no dispute as to the facts in this case which are substantially as follows: On February 5, 1921, the plaintiff was the owner of the southeast quarter of the northeast quarter of section 1, township 25, range 26, in Barry county. On that date he executed a note to F. B. Williams for $ 1500, due in five years from that date, and secured the same by a deed of trust on the land above described with E. S. Williams as trustee. On September 10, 1921, plaintiff entered into a contract of sale of said land to one George S. Taylor by which George S. Taylor was put in possession of the land and it was agreed that when Taylor had fully paid for the land, Bloss would deliver a deed to him conveying title to the land. He did execute a deed but did not deliver it. Taylor agreed to pay the debt of plaintiff to Williams of $ 1500, secured by a deed of trust given plaintiff as part of the purchase price of the land. Taylor did not succeed in paying off the note for $ 1500 and thereby releasing the deed of trust on the land given to secure it. Before maturity, defendant, Eliza R. Roos, became the owner of this note for $ 1500 for value but the question of her being an innocent purchaser is not involved in this case. When this $ 1500 note became due, it was not paid and shortly thereafter the time of payment of this note was extended by the holder through her agent without consulting Mr. Bloss, the original maker of the note. The trustee named in the deed of trust died and defendant, Howard Gray, was substituted as trustee under the terms of the deed of trust. Default was made in payments required by the extension agreement and the trustee undertook to foreclose by advertisement and sale as provided in the deed of trust. In the meantime the purchaser of the land, Mr. Taylor, had defaulted in his payments to Mr. Bloss and the land had fallen back to him. When the foreclosure proceeding was started, Mr. Bloss brought this suit to enjoin the sale.

Plaintiff's suit is based on the contention that when he sold the land to Taylor, who assumed and agreed to pay the encumbrance on the land, that the purchaser then became the principal in the note and he occupied the position of surety and the extension of time for payment of the note without his consent released him and since he was released the deed of trust given by him to secure the payment of the note was also released and could not be foreclosed and the land sold to pay the debt. Had the original note been signed by Taylor as principal and Bloss as surety and Bloss had then executed the deed of trust on his own land to secure the debt of the principal, his contention would be right, for when the surety on a...