Butler v. Manley

• Court: Missouri Court of Appeals
• Writing for the Court: BLAIR
• Citation: Butler v. Manley, 416 S.W.2d 680 (Mo. App. 1967)
• Decision Date: 05 June 1967
• Docket Number: No. 24659,24659
• Parties: Wallace H. BUTLER and Shirley R. Butler, Respondents, v. Raymond C. MANLEY and Trula L. Manley, Appellants.

Page 680

416 S.W.2d 680

Wallace H. BUTLER and Shirley R. Butler, Respondents, v. Raymond C. MANLEY and Trula L. Manley, Appellants.

No. 24659.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Martin Anderson, Kansas City, for appellants.

Bancroft M. Tapp, Ennis, Browne & Martin, Kansas City, for respondents.

BLAIR, Judge.

This is an action for unlawful detainer originally brought in the magistrate court where judgment was rendered for the plaintiffs, Wallace H. Butler and Shirley R. Butler, and against the defendants, Raymond C. Manley and Trula L. Manley. The defendants appealed to the circuit court where a summary judgment was rendered for plaintiffs on their petition for possession of the premises involved and against the defendants on their counterclaim. The question of the value of monthly rents, profits and damages was left for trial. Subsequently this question was tried by the court and it was adjudged that the plaintiffs were entitled to the sum of $2,550.00. On this appeal there is no question about this last portion of the judgment except it is argued that plaintiffs were not entitled to a summary judgment for possession of the premises involved and therefore not entitled to any sum for monthly rents, profits and damages. The defendants appeal to this court on the ground that 'there were controlling material facts in dispute to preclude the entry of summary judgment' in favor of plaintiffs for possession of the premises and against defendants on their counterclaim.

A disposition of this appeal requires consideration of a former action between these same parties. In September, 1961, the defendants in this action purchased the real estate involved and conveyed it by deed of trust to Wilbur B. Ennis, as trustee for Ray Simley & Co., Inc., to secure the payment of a note for $16,800.00 payable to Ray Simley & Co., Inc., at the rate of $110.83 per month. On September 29, 1965, Ray Simley, acting for Ray Simley & Co., Inc., advised Wilbur B. Ennis, the trustee, that the note secured by the deed of trust was in default and directed him to sell the real estate according to the terms of the deed. It was sold at public auction and purchased by Wallace H. Butler and Shirley R. Butler, the plaintiffs in this action. Thereafter Raymond C. Manley and Trula Manley, the makers of the note and grantors in the deed of trust, and defendants here, brought suit in the circuit court of Jackson County naming Ray Simley & Co., Inc., Ray Simley, as an individual, Wilbur Ennis, the trustee, and Wallace H. Butler and Shirley Butler, the purchasers, as defendants and alleging that they had all wrongfully, fraudulently and maliciously conspired together to cheat and defraud the plaintiffs by foreclosing the deed of trust and selling the real estate, although all payments due on the note had been paid when due and there was no default, and that defendants, pursuant to this conspiracy, caused the deed of trust to be foreclosed and the property to be sold to Wallace H. Butler and Shirley Butler, thereby wrongfully, fraudulently and maliciously depriving the plaintiffs of their equity in the real estate. They alleged that the value of their equity was $7,500.00. They prayed for judgment for $7,500.00 actual damages and $15,000.00 punitive damages. The circuit court granted a summary judgment against the plaintiffs and for all the defendants. No appeal was taken from that judgment and it had become final at the time the present suit for unlawful detainer was litigated.

In the case before us the petition for unlawful detainer was in the conventional form and it stands...