Brown v. Bland

• Decision Date: 04 April 1921
• Parties: BROWN v. BLAND
• Court: Missouri Court of Appeals

229 S.W. 448

BROWN v. BLAND

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Appeal from Circuit Court, Clinton Count; Alonzo D. Burnes, Judge.

"Not to be officially published."

Action by Virgil D. Brown against Herbert F. Bland. Judgment for defendant, and plaintiff appeals. Affirmed.

E. C. Hall, of Kansas City, for appellant. R. H. Musser, of Plattsburg, for respondent.

BLAND, J.

This is an action to recover $6,266.96, being the balance claimed to be due the mortgagor from the trustee upon a sale by the latter of the mortgaged land under the provisions of a deed of trust. No part of the costs of sale, $104.20, is sued for. It is alleged that the trustee has failed to pay over to the plaintiff the amount in his hands after paying the debt, interest, and expenses of foreclosure. There was a trial before the court without the aid of a jury, resulting in a judgment for the defendant, and plaintiff has appealed.

The facts show that plaintiff was the owner of real estate situated in Clinton county. On August 28, 1911, he conveyed the land to defendant as trustee for Emma S. Bland to secure two notes of $1,000 each, bearing 7 per cent. interest and given by plaintiff to her. This deed of trust was made subject to a prior deed of trust securing a note for $5,750 in favor of Claude Funkhouser. The Bland notes were afterwards assigned to Stanton Field. The second deed of trust provided that in case of default on the part of the grantor the trustee might proceed to sell the land at public vendue to the highest bidder for cash, at the courthouse door in the city of Plattsburg, Mo., after giving the usual notice to be published in a newspaper, and out of the proceeds of the sale should be paid, first, the cost and expenses of executing the trust, second, the payment of the notes and interest secured by the deed of trust, and that the remainder of the money, if any, should be paid over to plaintiff.

On February 7, 1916, default having been made in the payment of said notes and interest thereon, defendant proceeded to execute the powers given to him in the deed, and on that day, having given the required notice, proceeded to sell the property to the highest bidder at the place mentioned in the deed of trust. The notice of sale provided that the property would be sold in accordance with the deed of trust and that said deed of trust was given subject to a prior one in favor of Claude Funkhouser for $5,750.

Prior to the foreclosure proceedings plaintiff had sought to sell the land but had been unsuccessful. He had solicited one McDermott to buy the same, but the deal was not consummated. McDermott testified that plaintiff told him, about eight days before the sale, that the property would be sold by the trustee clear of all indebtedness including that of Funkhouser. Plaintiff contends that McDermott had reference to the way in which the property would be sold in case he bought it of plaintiff direct. We think that his evidence shows to the contrary. He testified that plaintiff said "that the place would be sold clear of debt, here at the courthouse." (Italics ours.)

The property was advertised and sold by defendant at the request of Field, the owner of the notes. The sale was attended by a great many persons including plaintiff, defendant, Field, McDermott, and Field's attorney. The attorney announced on behalf of Field and the defendant that the land would be sold free and clear of all incumbrances including the first mortgage, and that whoever was the successful bidder should have the option to pay the first mortgage out of the sum bid or that the mortgage should remain on the place to be assumed by the purchaser as he might elect, and that the holder of the first deed of trust had agreed to this plan. This announcement was made so all could hear. McDermott, having in mind his conversation with plaintiff had eight days before the sale, inquired of the defendant during the progress of the sale as to whether the property was to be sold clear of all debts and was to be bid at so much per acre. He understood frail the defendant that that was the way it was to be sold.

In accordance with the understanding that the bids were to be received as though the property was to be sold free and clear of all indebtedness, McDermott bid in the same at the price of $71 per acre, which amounted to $9,073.80. No money was paid to the trustee except his fee, but plaintiff, defendant, McDermott, Field, and the latter's attorney repaired to the Funkhouser bank in the city of Plattsburg, and the amount due Funkhouser as the holder of the first mortgage was calculated at $6,142, which was deducted from the $9,073.80. The amount due on the second mortgage was approximately $2,700, and the amount of the cost of the sale was $104.20. These amounts were paid to the proper parties after the first deed of trust was accounted for. The balance left was paid to Field on another indebtedness owed by plaintiff to Field in accordance with an agreement between the latter and plaintiff. Funkhouser and Field's attorney did the figuring. The trustee's commission was figured upon the amount of the bid, and the trustee's deed recited that the sum of $9,073.80 had been paid to the trustee as consideration for the deed and that the trustee's deed was given subject to a prior deed of trust securing said sum of $5,750. The deed was stamped with revenue to cover only the amount owing on the second deed of trust. There is no evidence that plaintiff said anything either at the sale or at the bank, but there is evidence he went to the bank with the rest, that the figures were shown to him, and that he was present at the time the money was paid over. After the matter was wound up the second deed of trust was released upon the records, and at the request of McDermott plaintiff and his wife made a quitclaim deed to him. The property was sold in the manner in which it was at the request of Field as the holder of the notes secured by the second deed of trust.

It is contended by plaintiff that defendant...