Colbern v. Yantis

• Decision Date: 27 May 1903
• Citation: 75 S.W. 653,176 Mo. 670
• Court: Missouri Supreme Court
• Parties: COLBERN v. YANTIS et al.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 653

176 Mo. 670

COLBERN v. YANTIS et al.^*

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

EJECTMENT — RESTITUTION — SALE UNDER PARAMOUNT DEED OF TRUST — PURCHASER NOT PARTY — DISCHARGE OF RECEIVER — WAIVER OF ILLEGALITY — APPOINTMENT OF RECEIVER — PROPRIETY — PAYMENTS UNDER JUDGMENT — REVERSAL — REPAYMENT — SUMMARY REMEDY.

1. The appointment of a receiver in ejectment on plaintiff's showing that there is a deed of trust on the property on which interest is unpaid, that the taxes are delinquent, and that the holder of the trust deed is threatening to foreclose, is erroneous.

2. Where a receiver appointed in ejectment sells the property in his character of trustee in a deed of trust, and the purchaser is not a party to the ejectment suit, restitution of the property to defendant on his securing a reversal of plaintiff's judgment cannot be ordered.

3. Where a receiver appointed in ejectment sells the property in his character as trustee in a deed of trust which is paramount to the title of either of the parties, restitution to defendant on his securing a reversal of plaintiff's judgment cannot be ordered.

4. Where a receiver appointed in ejectment has been discharged, after selling the property in his character as trustee in a deed of trust, without presenting the deed to the court or securing an order for the sale, the regularity of his act cannot be determined on an appeal by defendant from the refusal of a writ of restitution after a reversal of plaintiff's judgment, and hence restitution cannot be ordered.

5. Where a receiver appointed in ejectment sells the property in his character of trustee in a deed of trust, and the defendant is present, and objects to the sale only on the ground that the obligation secured by the deed is not due, he cannot afterwards, and after securing a reversal of plaintiff's judgment, have restitution on the ground that the receiver had not secured leave of court for the sale.

6. Where, in ejectment, a receiver is appointed, sells the property, and gives possession, defendant is not liable to plaintiff for rents accruing subsequent to the receiver's possession, and, having paid such rents to plaintiff to avoid execution, is entitled to a recovery thereof on securing a reversal of plaintiff's judgment, which itself did not assess any rents to be paid after the receiver's possession.

7. Where plaintiff in ejectment secures a judgment by virtue of which receiver pays to him the proceeds of a sale, representing the equity of redemption in the land in suit, the defendant, on securing a reversal of the judgment, is entitled to a recovery thereof.

8. Where a judgment plaintiff in ejectment, by threat of execution, secures the payment of money on the judgment, and also the proceeds of a sale, representing the equity of redemption in the land in suit, the defendant, on securing a reversal, is entitled to summary restitution in the ejectment action, and is not relegated to a separate suit.

Appeal from Circuit Court, Cass County; H. C. Timmonds, Special Judge.

Action by D. M. Colbern against S. A. Yantis and others. From a judgment refusing restitution to defendants after reversal of plaintiff's judgment, defendants appeal. Reversed.

R. T. Railey, Chas. W. Sloan, and Chas. H. Winston, for appellants. Willard P. Hall, for respondent.

MARSHALL, J.

This is an action of ejectment. It is the second appeal in the case. The decision on former appeal is reported in 167 Mo. 562, 67 S. W. 1100. As therein stated, the conclusion then reached was the necessary and logical result of the decision in Walter v. Scofield, 167 Mo. 537, 67 S. W. 276. The origin, nature, and proceedings in the controversy over the land are set out in those two cases, which must be read in connection with this case, and need not be repeated here. It is only necessary to set out in this opinion such matters as did not then appear to this court, or have occurred since the former decision.

It now appears that while this cause was pending in the circuit court, and before any judgment had been rendered in the case, and while the defendants were in possession of the land, the plaintiff showed to the court that there was a deed of trust upon the land for some $3,000, which was superior to the title of either of the parties to the case and to that of those under whom these parties claim, and that the interest on said deed of trust was unpaid, and the taxes were delinquent, and that the holder of the deed of trust was threatening to foreclose the deed of trust, and prayed the court for these reasons to appoint a receiver to take possession of the property. The court thereupon on October 19, 1895, appointed Frank Huber receiver of said property, ousted the defendants from the possession, and put the receiver in possession. The action of the court in so appointing a receiver upon such a showing was clearly erroneous. Pullis v. Pullis, 157 Mo., loc. cit. 580, 57 S. W. 1095. But such error is immaterial in this case upon the present state of the record, and, furthermore, was acquiesced in by all parties. The receiver took possession of the land, and also of the growing crops, and sold the crops for $145. Thereafter, on the 4th of February, 1896, the circuit court entered judgment against the defendants for possession and for $40 per month rents and profits from the date of the institution of the suit until the receiver took possession, amounting in the aggregate to $200. From this judgment the defendants appealed, giving a supersedeas bond. The appeal was dismissed on April 17, 1899, and a writ of error sued out on the same day. Under threats of seizure of their property the defendants thereafter, on September 14, 1899, paid to the plaintiff the sum of $826 in full of the damages and monthly rents and profits from February 4, 1896, to September 14, 1899, and also paid $43.25, the costs in the case. It will be observed that the defendants had been ousted from the possession by the court and the receiver put into possession in October, 1895, and it does not appear why the defendants paid the plaintiff the rents and profits from February 4, 1896, to September 14, 1899, but is perfectly apparent that the defendants could not have been held liable therefor, for they were not in possession of the premises during that time, but the receiver, who was appointed on the plaintiff's motion, was in possession from September 21, 1895, until February 8, 1897, and other persons were in possession under a superior title, to wit, the foreclosure of the deed of trust, from February 8, 1897, until September 14, 1899, and that they or those claiming under them are still in possession.

It further appears that Frank Huber, who had been appointed receiver as aforesaid, was also the trustee under the deed of trust aforesaid. The note secured by the deed of trust was owned by John Bachman, who resided in Pennsylvania. He died intestate in 1894, and on May 30, 1895, Frank Huber was appointed the administrator of his estate by the probate court of Cass county, Mo. He had no estate in Missouri, except as it arose from owning the note, secured by said deed of trust on this land, and the note was in Pennsylvania at the time of his death and at the time Huber was appointed administrator. On February 8, 1897, at the instance of the heirs of Bachman, Huber, as trustee, foreclosed the deed of trust to satisfy the note which he held as administrator, and sold the land which he held as trustee. At that sale Lloyd S. Walter, acting as attorney in fact for Jacob Walter, read to the persons present at said sale a letter written to him by John Bachman, extending the time for the payment of the deed of trust upon condition that the interest should be kept paid up, which time had not then expired, and thereupon Lloyd S. Walter tendered to the trustee and administrator, Huber, all unpaid interest and costs, and objected to and forbade the sale under the deed of trust. Huber refused the tender, and proceeded with the sale, with the result that Lloyd S. Walter purchased the property for his wife, Ada S. Walter, for $5,310, and paid $500 cash as a part payment. Ada S. Walter then sold the south half of the premises to Porter I. Wallingford for $2,750. On February 18, 1897, Ada S. Walter and Lloyd S. Walter, her husband, and the plaintiff's attorney, met Huber to close the sale. Mrs. Walter paid Huber $3,644.42 in cash (which was made up in part by the $2,750 she had received from Wallingford), that being the amount due under the deed of trust, with interest and costs; and on account of the balance due on her bid, to wit, the sum of $1,558.50, she gave Huber a note made by herself and her husband, and payable at 30 days. No provision was made for the payment of the balance due on the bid, amounting to $107.08, nor does it appear whether or not it was ever paid. Afterwards Ada S. Walter sold the north half of the property to Porter I. Wallingford, so that he became the owner of the whole tract, and has been ever since in possession thereof.

After the appeal was dismissed, the plaintiff requested Huber, as receiver, to make a report, which he did on June 2, 1899, showing that he had sold the land, and, after paying the mortgage, he had loaned the balance realized from the sale, amounting to $1,588.50, upon real estate security, and that he had the note in his possession. At that time Hon. H. C. Timmonds, Judge of the Twenty-Sixth Judicial Circuit Court, was holding the Cass circuit court for the purpose of trying certain cases wherein the regular Judge, Hon. W. L. Jarrott, had been of counsel. Although called on to try certain cases, for some unexplained reason the report of the receiver in this case was called up by the plaintiff without any notice to the defendants, and in their absence, and an order was procured from Hon. H. C. Timmonds on the receiver to turn over the note aforesaid to the plaintiff. The receiver was allowed $47.86 for his...