Bridges v. Smith

• Decision Date: 05 July 1919
• Docket Number: No. 20262.,20262.
• Citation: 213 S.W. 858
• Parties: BRIDGES v. SMITH et al.
• Court: Missouri Supreme Court

213 S.W. 858

BRIDGES v. SMITH et al.

No. 20262.

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Appeal from Circuit Court, Newton County; Carr McNatt, Judge.

Ejectment by B. W. Bridges, trustee, against L. H. Smith and another. Judgment for plaintiff, motion for new trial overruled, and defendants appeal. Affirmed.

This is an action of ejectment, brought by plaintiff, Bridges, as trustee, against defendants in the circuit court of Newton county, Mo., to recover possession of 160 acres of land, located in said county and described in petition. The date a ouster is stated in petition as June 17, 1916. Plaintiff asked for possession of said premises, claimed $500 damages and alleged the monthly value of the rents and profits to be $25.

The answer of defendants denies each and every allegation of petition. It contained other matters, which were demurred to by plaintiff, on the ground that they constituted no defense to the cause of action stated in petition. Said demurrer was by the court sustained.

The facts are substantially as follows: Respondent and appellants claim title to the land in controversy under John W. Smith, as the common source; respondent, by virtue of a mortgage deed of trust from John W. Smith to F. B. Williams, as original trustee, who resigned, and to whose place respondent was appointed; appellants, through a junior mortgage from John W. Smith to Horace Ruark, as trustee.

The deed of trust, of date June 16, 1913, under which respondent claims as acting trustee, granted said premises to the original trustee, F. B. Williams, and to his successors in trust, for security to E. S. Williams, in respect to the $650, principal note described therein, and the several interest coupons attached for the amount of $19.50 each, due and payable semiannually, on the 1st days of January and July in each year, until the maturity of the note July 1, 1918. According to the covenanted terms of this Williams' mortgage, in default of payment of any part of the secured note, or matured interest or coupon, the whole debt should, at the option of the legal holder of said note, at once became due and payable; and also the trustee or his successor in said trust should thereupon be entitled to immediate possession of said premises, and of the rents, issues, and profits thereof; and also the trustee or his successor, according to other terms therein covenanted, might, at the request of the legal holder of said note, proceed to publicly sell and convey said premises, after 20 days' public notice as the law requires, to pay the mortgage debt, of the trust, etc.

Further covenanted terms of said deed of trust are:

"That in case of the death, resignation or inability to act of the said party of the second part, at any time when action under the foregoing powers, and trust may be required, the legal holder of said note shall be empowered to appoint, by an instrument in writing, a successor in trust under this deed, in whom the title to said premises shall thereupon vest for the uses and purposes herein, expressed."

The secured note and interest coupons were duly assigned by indorsement of the payee, E. S. Williams, and purchased, owned, and held by George A. Graves, trustee, etc., who, on account of default in payment of said installments and coupons,, on and after July 1, 1914, elected to avail himself of the said stipulated creditor's option, and declared the whole debt due and payable; of which he gave the maker of the note and mortgage and the appellants due notice in writing, in May, 1916, thereby demanding payment and warning them that he would invoke execution of the trustee's powers of possession and collection, by the trustee named or his successors.

The original trustee refused, on request, to execute the trust, produced and delivered to said Graves his written and acknowledged resignation, bearing the previous date of July 9, 1914, which became the basis of action by said Graves, who, at the June term, 1916, of the circuit court of Newton county aforesaid, proceeded by written statement and petition, to effectually exercise his privileges and procure execution of the trust powers created contractually by the said deed.

Said Graves thereby nominated and appointed the respondent, Bridges, who was sheriff of said county, to be successor to said original trustee for execution of the said trust powers, and asked the court to confirm his said act of appointment as being by the owner and holder of the said note and mortgage debt, and to add its own concurrence and appointment of said sheriff as such trustee, with such powers, pursuant to the statute relating to trustees in such cases. Thereupon the circuit court aforesaid spread the statement and petition of said Graves upon its record, and thereupon, after seeing the verification and considering the proofs, did, by its ex parte `order, approve and confirm the appointment by said Graves; and also, in conformity to the statute, the court appointed respondent to be such trustee, with powers expressed and granted in said deed, the same being enumerated with reference to the said deed in the order of appointment.

A certified copy of the record entry and order aforesaid was delivered to the respondent, as sheriff and trustee, who indorsed thereon the request of the beneficiary Graves, terms of said deed of which was then made to him as trustee, that he take possession of the said premises, collect and apply the rents and profits to the secured debt; pursuant to all which the respondent, as such sheriff and trustee, made written demand, June 17, 1916, upon appellants for possession of the premises, !he same being in their possession and control, which was followed by this action, for possession, returnable to the October term of that, year.

The trial court sustained a demurrer to all of defendants' answer, except the general denial. That part of the answer eliminated by the demurrer pleads: The execution by said John W. Smith of a deed of trust on said land `to Horace Ruark, trustee, to secure the payment of a certain note to one Hulse (which deed of trust was subject to the trust deed first above described), which was foreclosed in due course, and defendant May Smith became the purchaser at the foreclosure sale.

The answer further pleads that defend ant May Smith, on the _______ day of January, 1915, tendered and offered to pay to said Graves all interest coupons then due and unpaid; that said Graves refused to accept same; and again, on the _______ day of _______, 1916, defendant May Smith again tendered and offered to pay to said Graves all interest coupons due and unpaid on said note and mortgage, which tender was refused, and which said offer and tender were conditioned as follows:

"That said Graves should...