Cockrell v. Taylor

• Decision Date: 11 December 1940
• Docket Number: 36878
• Citation: 145 S.W.2d 416,347 Mo. 1
• Parties: Beulah Cockrell, Appellant, v. Frank B. Taylor, Olie Taylor, National Life Insurance Company, a Corporation, et al
• Court: Missouri Supreme Court

145 S.W.2d 416

347 Mo. 1

Beulah Cockrell, Appellant, v. Frank B. Taylor, Olie Taylor, National Life Insurance Company, a Corporation, et al

No. 36878

Supreme Court of Missouri

December 11, 1940

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

N C. Hawkins for appellant.

All estoppels must be certain to every intent. There can be no argument or inference about it. There must be a precise affirmation. There are no halfway grounds. This is true even as to res adjudicata. It is not a "fetish" to which the rights of the parties must bow down. Sutton v. Dameron, 100 Mo. 151; Koontz v. Kaufmann, 31 Mo.App. 409; Jungblut v. Maris, 130 S.W.2d 683; Adams v. Met. Life Ins. Co., 139 S.W.2d 1098. The essential elements of estoppel are well known. They must not only exist, but they must be alleged, by one invoking estoppel, and what is more essential, it must also be alleged and proved that "on the faith" of the alleged acts he did or omitted to do something, and thereby changed his position or condition for the worse, that is, he is injured. Taylor v. Farmers Bank, 135 S.W.2d 1111; In re Franz's Estate, 344 Mo. 523, 127 S.W. 406; Rhoads v. Rhoads, 342 Mo. 941, 119 S.W.2d 247; Handlan v. Wicoff, 240 S.W. 458. Defendants failed to allege or try to prove any injury. There was no injury. Estoppel does not create any rights, its only purpose is to protect a party in rights obtained relying upon the acts of estoppel. Defendants did not rely on any acts of plaintiff. Waugh v. Williams, 342 Mo. 910, 119 S.W.2d 226; State ex rel. v. Shain, 342 Mo. 932, 119 S.W.2d 239. A note secured by deed of trust can only be assigned by endorsement on "its back" or on a paper attached to the note itself. Bishop v. Chase, 156 Mo. 158, 56 S.W. 1080; Krost v. Kleg, 46 S.W.2d 868. Defendants' counsel is an able attorney. The answer shows he pleaded everything he thought there was any chance to establish. He did not plead laches. Unless pleaded or shown by the evidence of the other party, it is not an issue in the case. "The issues in a lawsuit are made up by the pleadings and not by anything else." In a suit in equity even "The Supreme Court is limited to the issues made by the pleadings." Conrad v. Diehl, 344 Mo. 816 129 S.W.2d 870; Merz v. Tower Grove Bank, 130 S.W.2d 611; Rains v. Moulder, 338 Mo. 275, 90 S.W. 81. There is no doubt or uncertainty in and about doing equity. Therefore, no room for laches. Breit v. Bowland, 92 S.W.2d 110; Summers v. Abernathy, 136 S.W. 289; Goesling v. Goesling, 287 Mo. 679, 230 S.W. 613; Bickle v. Argyle Inv. Co., 343 Mo. 941, 121 S.W.2d 803; In re Flynn's Estate, 67 S.W.2d 774; Mahen v. Tavern Rock, 327 Mo. 396; Voights v. Hart, 285 Mo. 102, 226 S.W. 248; Wilkinson v. Lieberman, 37 S.W.2d 536; Williams v. Ried, 37 S.W.2d 542. The basis of laches is injury. No injury was alleged or shown. There is no injury. Adams v. Met. Life Ins. Co., 139 S.W.2d 1098. "Laches is purely a defense to an equitable claim or cause of action, and has no place as a defense in an action at law . . . Laches, in order to be available as a defense to an equitable claim or cause of action, must be pleaded. Defendants did not plead laches, which was an affirmative defense. This question is, therefore, not in the case." Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1018; Breneman v. The Laundry, 87 S.W.2d 432.

Ward & Reeves for respondents.

The deed of trust from Ola L. Sanders to Liberty Central Trust Company as trustee for Liberty Central Joint Stock Land Bank, dated April 1, 1924, and recorded in Book 94 at page 314, makes no provision for a trustee to act in the event the trustee named fails, refuses or is incapacitated. It contains the usual provisions of default in payment of the debt, or of default in payment of taxes, general and special, then the deed of trust provides that the deed of trust shall remain in full force and effect, and in case of the death or absence from the county, or any other disability, or refusal to act, its successor in this trust may proceed to sell the property at the courthouse door, etc. In other words, the deed of trust does not name a successor trustee. Therefore, Sections 3135 and 3137, Revised Statutes 1929, are applicable. These section provide that whenever any trustee in any deed of trust has become insane, or shall remove or has been removed out of the state, shall neglect or refuse, or has neglected and refused to act as such trustee, or shall or has become unable, by sickness or other disability, to perform or execute his trust, any person interested in the debt secured by the deed of trust may present his or their affidavit stating the facts of the case specifically to the circuit court of the county where the property is located. Stone v. Ry. Co., 261 Mo. 61; Swabey v. Boyers, 274 Mo. 332; Cloud v. Loan & Trust Co., 52 Mo.App. 318; State ex rel. v. Wurdeman, 274 S.W. 410; Farm Mtg. Holding Co. v. Homan, 119 S.W.2d 272; Sullinger v. West, 211 S.W. 65; Barron v. Store Co., 237 S.W. 92; Hendricks v. Calloway, 211 Mo. 536.

OPINION

Hays, P. J.

This is an appeal by the plaintiff from a decree of the Circuit Court of Pemiscot County, Missouri, in favor of the defendants. The suit is one in equity to perfect title to some sixty acres of land and to set aside a sale of said land in foreclosure of a deed of trust which we shall hereafter refer to as the Sanders mortgage. The appellant, who will be spoken of hereafter as plaintiff, claims title under certain conveyances from the grantor in said deed of trust; and respondents Frank B. Taylor and Olie Taylor claim title as purchasers from the purchaser at the foreclosure sale. Their co-defendant the National Life Insurance Company, a corporation, is holder of a mortgage from the Taylors. Plaintiff's petition charges that the foreclosure sale was invalid for several reasons which we shall hereafter separately notice.

By their separate answer the defendants Frank B. Taylor and Olie Taylor, after admitting their claim to ownership and denying the other allegations of the petition, pleaded that they took title to said land as bona fide purchasers for value and without notice of this plaintiff's claim. They also pleaded certain facts as an estoppel against the plaintiff and that the issues involved in the present case had been fully adjudicated in a former action in which the plaintiff, although not a formal party to the record, was a real party in interest. Their answer seeks affirmative relief, asking that the title to the land be decreed to be in them; and, in the alternative, that they be subrogated to the rights of the mortgagee under the Sanders mortgage.

The National Life Insurance Company, by its separate answer, admitted its claim of interest in the real estate and pleaded that it too was a bona fide purchaser for value without notice.

To fully understand the contentions of the plaintiff it will be necessary to briefly trace the chain of title prior to the foreclosure of the Sanders mortgage. On and prior to April 1, 1924, one Ola L. Sanders, a sister of the plaintiff, was the fee simple owner of this land. On the last mentioned day she executed and delivered the deed of trust, the foreclosure of which is here in question, to the Liberty Central Trust Company of St. Louis, trustee for the Liberty Central Joint Stock Land Bank. The Trust Company was a Missouri corporation and the Land Bank had its principal office and place of business in St. Louis. In May, 1924, Ola L. Sanders conveyed her equity by general warranty deed to her sister, the plaintiff, subject to the above mentioned deed of trust. In September, 1925, the Liberty Central Joint Stock Land Bank executed, delivered and placed of record a deed of assignment assigning the Sanders deed of trust to the Kansas City Joint Stock Land Bank. In February, 1928, the Federal Farm Loan Board appointed H. M. Langworthy as receiver for the Kansas City Joint Stock Land Bank to liquidate the same. In July, 1931, Langworthy executed, acknowledged, delivered and caused to be recorded a deed of assignment assigning the Sanders mortgage and the note secured thereby to the Phoenix Joint Stock Land Bank. Said assignment states among other things that it was authorized by order of the Federal Farm Loan Board, but the order itself is not put in evidence.

In September, 1931, the Phoenix Bank, by a duly signed and acknowledged instrument, executed by its vice president, assigned said note and deed of trust to the Farm Mortgage Holding Company.

Meanwhile in August, 1928, the sheriff of Pemiscot County executed a deed under general execution purporting to convey the equity theretofore owned by the plaintiff in said land to her sister Ola L. Sanders. Neither the judgment nor execution are shown in the record. On the following day Ola L. Sanders executed a quitclaim deed back to her sister. This quitclaim deed was not recorded until 1936. Mrs. Sanders testified that it was not delivered to the plaintiff until about the time it was recorded, but plaintiff says it was delivered to her shortly after its execution.

The Liberty Central Trust Company, named as trustee in the Sanders mortgage, merged and consolidated with the First National Bank of St. Louis, after which it ceased to operate as a trustee in any matters. In furtherance of this merger agreement the Trust Company on April 3, 1929, resigned in writing as trustee under this deed of trust.

The situation in March, 1932, at the time when the steps preliminary to foreclosure were taken, was as above outlined. To further understand the foreclosure procedure however, certain of the recitals in the Sanders deed of trust must be noted. The mortgage provided that the mortgagor should pay all taxes and that, "It shall be the privilege of said party of the...