Boyer v. Bourn, Civil Action No. 157.

• Decision Date: 27 April 1945
• Docket Number: Civil Action No. 157.
• Citation: 61 F. Supp. 715
• Parties: BOYER v. BOURN et al.
• Court: U.S. District Court — Eastern District of Missouri

61 F. Supp. 715

BOYER v. BOURN et al.

Civil Action No. 157.

District Court, N. D. Missouri, E. D.

April 27, 1945.

Elmer McClain, of Lima, Ohio, and Sam Friedman, of Hannibal, Mo., for plaintiff.

Charles E. Rendlen, Harrison White (of Rendlen, White & Rendlen), of Hannibal, Mo., and Hudson V. Smoot of Smoot & Smoot, all of Memphis, Mo., for defendants.

DUNCAN, District Judge.

This is a suit for the recovery of possession of the following described real estate:

"The Northwest Fourth (¼) of the Northwest Quarter (¼) of Section Sixteen (16) also the South One-half (½) of the Southwest Quarter of Section Nine (9) and the Northeast Fourth (¼) of the Northwest Quarter (¼) of Section Sixteen (16) and the West One-half (½) of the Southeast Fourth (¼) of the Northwest Quarter (¼) of Section Sixteen (16) all in Township Sixty-five (65) of Range Ten (10) West, except one (1) acre out of the Northeast corner of the South half of the Southwest Quarter of section Nine and containing in all One Hundred Seventy-nine acres, more or less, and located in Scotland County, Missouri."

and for damages to a barn located thereon; the value of timber removed therefrom and for the reasonable annual rental value thereof from March 2, 1935. Plaintiff bases his right to recovery on the ground that the foreclosure sale under a deed of trust under which defendants acquired such land, was void.

On April 5, 1930, the plaintiff was the owner of and in possession of the property described aforesaid, and on that date, he and Joy B. Boyer, his wife (now deceased), executed their promissory note to W. E. Shannon in the sum of $4000.00 with interest at the rate of 6% per annum, payable annually, and if not so paid, to become part of the principal and all bear interest at the rate of 8% per annum thereafter, together with reasonable attorney's fees. Said note was secured by deed of trust on all of the property above described. Be fore maturity, the note was signed in blank without recourse by the payee and delivered to Matison Boyer, plaintiff's brother.

No part of said note was paid, and on October 5, 1934, while the plaintiff was in possession of said property, he filed with the Clerk of the United States District Court for the Northern Division of the Eastern Judicial District of Missouri at Hannibal, his petition under Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, seeking to effectuate a composition or extension of his debts, and listed the property above described as a part of the assets of his estate, and the note and deed of trust described aforesaid, among his obligations. The petition as filed, was approved on October 8, 1934, and was ordered referred to the Conciliation Commissioner on that date.

At the request of the holder of said note, and pursuant to due notice, the trustee sold the property aforesaid at trustee's sale on October 6, 1934, and Matison Boyer, the holder of the note, was the highest and best bidder for said property for the sum of $1790 and on the same date the trustee made, executed and delivered a trustee's deed to the said Matison Boyer conveying all of said real estate described in the deed of trust to him, said deed being recorded in Book 170 at page 35 of the Deed Records of Scotland County, Mo.

On October 8, 1934, on the same day on which the order of approval was filed and the petition referred to the Conciliation Commissioner, the purchaser at the trustee's sale (Matison Boyer) filed an action in ejectment against Okie R. Boyer, in the Circuit Court of Scotland County, Missouri, and on November 16, 1934, final judgment in ejectment was entered in said action, adjudging that Matison Boyer was the owner in fee simple of said land and entitled to the immediate possession, and restitution was ordered. No appeal was taken from the judgment.

A writ of restitution was issued pursuant to the judgment aforesaid and delivered to the sheriff of Scotland County, Missouri. Pursuant to said writ of restitution, the sheriff evicted and ejected the said Okie R. Boyer and delivered the possession of said property to Matison Boyer on March 2, 1935, and the said Matison Boyer retained possession of said property until the time of his death on April 30, 1938.

By virtue of a will executed by the said Matison Boyer, Emma Boyer, his widow, received a life estate in said property, with the remainder to his daughter, the defendant, Elsie Bourn. Emma Boyer occupied the property from the time of the death of her husband on April 30, 1938, until her death on November 7, 1943. At that time, defendant Elsie Bourn came into possession of said property, and is now and was at the time of the institution of this suit, the legal owner and holder of the promissory note and deed of trust aforesaid, under the will of said Matison Boyer.

Following the reference of the petition filed on October 5, 1934, to the Conciliation Commissioner, he called a meeting for November 5, 1934. At that meeting the farmer-debtor presented his written offer of compromise or extension, which was rejected by Matison Boyer, the only creditor present. Matison Boyer also submitted a counter-offer which was refused by the debtor. These matters are all contained in the report of the Conciliation Commissioner.

Following failure of the parties to agree upon a compromise, the Conciliation Commissioner in his report to the court recommended that debtor's position be dismissed on the ground that petitioner was not proceeding in good faith, and that the creditors be allowed to collect their claims in the regular procedure. With this report he submitted certain written data in support of his recommendation.

On December 11, 1934, and subsequent to the report of the Conciliation Commissioner recommending dismissal of the petition, the court entered an order granting the debtor leave to file an amended petition under Section 75, sub. s, of the Bankruptcy Act. However, no amended petition was filed by the petitioner, and on January 28, 1935, the secured creditor, Matison Boyer, filed a motion to set aside the order of the court made on December 11, 1934 granting leave to file an amended petition.

On February 11, 1935, the motion of Matison Boyer to set aside the order¹ of the court granting leave to file an amended petition was sustained, and the order vacated, and the petition and proceedings of the debtor were dismissed. No appeals were taken from any of these orders and nothing further was done by any of the parties until on December 19, 1941, when Okie R. Boyer filed a motion to set aside the order of the court made on February 11, 1935, setting aside the order granting leave to the debtor to file an amended petition, and dismissing the petition of the debtor and all proceedings with respect to the setting aside of the order allowing an amendment to the petition and the dismissal of the petition. This motion was overruled on June 25, 1942. In the findings, the court states that:

"The dismissal order of February 11, 1935, was not based upon the unconstitutionality of sub-section (s); the decision of the Supreme Court to that effect was not handed down until May 27, 1935, (Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106); hence the order was not based upon the decision of the Supreme Court.

"The order was based upon the motion of the secured creditor and the recommendation and findings of the Commissioner, that the debtor was not prosecuting the (fol.29) proceeding in good faith, in that he had conveyed a portion of his land to his minor children without consideration, that he failed to file and present a fair plan for the extension of debts, that he failed to pay taxes and permitted penalties to accrue."

The Court further found:

"The present motion was filed over seven years after the order of dismissal was entered, and it is therefore untimely."

No appeal was taken from this order.

On February 15, 1943, Okie R. Boyer again filed a petition under Section 75 of the Bankruptcy Act for composition or extension of his debts, and in that petition, which is the petition now pending, he listed among his secured creditors Elsie Bourn as the holder of the promissory note described herein, and he listed among his assets, the property above described, together with a life estate in certain other lands which he now occupies.

On March 25, 1943, the court denied approval of debtor's petition and the proceedings were dismissed² at the cost of the debtor. On appeal this order was reversed by the United States Circuit Court of Appeals. In re Boyer, 8 Cir., 138 F.2d 349.

Following this decision of the Court of Appeals, the plaintiff was authorized by the Commissioner to institute this suit. The facts up to this point are not in dispute and were submitted to the court in the form of an agreed statement and shown in "Parties Exhibit A."

Upon a trial of this case, evidence was offered to show that the residence of the plaintiff was across the road from the property in controversy, from the time of the filing of the petition in 1934 to the present time, and as to the rental value of the land, the amount of timber removed therefrom, and the damage to a barn located thereon — also the value of the improvements placed on said property and the amount of taxes paid by Matison Boyer and those who succeeded him.

Plaintiff contends that the reasonable annual rental value of the property is about $400 and that he is entitled to that amount dating from March 2, 1935. He also contends that timber was cut and removed from the land to the extent of $7,500 and that the barn was damaged to the extent of $200.

Matison Boyer died on April 30, 1938; his widow, Emma Boyer, died November 7, 1943. Their estates have been fully administered upon and the administrators have been discharged.

The defendants allege:

(1) That the judgment in the Circuit Court of Scotland County, is res adjudicata and that plaintiff is estopped and...