Cordia v. Matthes

• Decision Date: 04 January 1936
• Docket Number: No. 33047.,33047.
• Citation: 90 S.W.2d 101
• Parties: CLARA CORDIA ET AL., Appellants, v. M.C. MATTHES ET AL.
• Court: Missouri Supreme Court

90 S.W.2d 101

CLARA CORDIA ET AL., Appellants, v. M.C. MATTHES ET AL.

No. 33047.

Supreme Court of Missouri.

Division Two, January 4, 1936.

Appeal from Washington Circuit Court — Hon. Robert I. Cope, Special Judge.

AFFIRMED.

Samuel Richeson and W.A. Brookshire for appellants.

(1) The appointment of M.C. Matthes, a resident of Jefferson County, Missouri, did not give him authority to exercise the powers provided for in the deed of trust for land located in Washington County. R.S. 1929, secs. 3135-3137; Hunter v. Hunter, 39 S.W. (2d) 359. (2) The foreclosure proceeding instituted on July 9, 1932, was improper and should have been permanently enjoined for the reason that the notes secured by the deed of trust sought to be foreclosed were barred by the Statute of Limitations. R.S. 1929, sec. 865; Friel v. Alewel, 298 S.W. 762; Alwell v. Johnson, 212 Mo. App. 211. (3) The injunction decreed by the Circuit Court of Washington County in September, 1927, and the permanent injunction decreed by the Circuit Court of St. Francois County in December, 1928, did not toll nor arrest the running of the Statute of Limitations on the notes in dispute for the reason that Section 877, Revised Statutes 1929, applies only to a commencement of a suit and not to a separate proceeding to foreclose a mortgage by advertisement and sale. R.S. 1929, sec. 877; Davis v. Andrews, 30 S.W. 432. (4) The permanent injunction issued by the Circuit Court of St. Francois County, Missouri, in December, 1928, did not stop the running of the Statute of Limitations against the notes for the reason that there is no statute specifically provided for such actions. Whittemore v. Sills, 76 Mo. App. 248.

T.E. Francis and Woodward & Evans for respondents.

(1) The question of the validity of the appointment of Matthes, as substitute trustee, cannot be considered on appeal for the reason that no issue concerning the appointment was raised in the petition and no such issue was presented or considered in the trial court. Farasy v. Hindert, 82 S.W. (2d) 573; Carney v. Ry. Co., 23 S.W. (2d) 993; Kansas City Pub. Serv. Co. v. Ranson, 328 Mo. 524, 41 S.W. (2d) 169; Meddis v. Kenney, 176 Mo. 200, 75 S.W. 633; Davis v. Dawson, 273 Mo. 499, 201 S.W. 524; Natl. Surety Co. v. Casner, 253 S.W. 1057; S. Mo. Pine Lumber Co. v. Carroll, 255 Mo. 357, 164 S.W. 599; Newham v. Kenton, 79 Mo. 382. (2) Properly construed, and giving effect to the historical development of the law and the intention of the Legislature, Section 3137, Revised Statutes 1929, does not prohibit the circuit court from appointing a substitute trustee from without the county. Laws 1849, p. 127; Laws 1855; Laws 1865, chap. 154, sec. 2; Laws 1871-72, p. 67; 25 R.C.L. 964, sec. 219. (3) The publication of the original advertisement for the sale of the property described in the deeds of trust on August 25, 1927, arrested the running of the period of limitations, and the proceedings commenced on July 21, 1932, were merely a continuation of the original proceedings, conducted in orderly fashion and prevented from consummation by the injunction rendered in the original suit. Friel v. Alewel, 318 Mo. 1, 298 S.W. 729; Norton v. Reed, 253 Mo. 236, 161 S.W. 842. (4) Inasmuch as the legal holder of the notes was prevented from enforcing collection thereof by reason of the injunction rendered in the original suit, the time during which the injunction was in force cannot be counted in determining the period of limitations. Therefore, the notes were not barred by limitations, although more than ten years had elapsed since the last payment thereon. R.S. 1929, sec. 877; State ex rel. Nichols v. Adams, 71 Mo. 620; Manes v. Case Mch. Co., 295 S.W. 281; Williams v. Pounds, 48 Tex. 141, 3 L.R.A. (N.S.) 1188; Cox v. Montford, 66 Ga. 62, 3 L.R.A. (N.S.) 1188; Little v. Price, 1 Md. 182, 3 L.R.A. (N.S.) 1188; Hutchison v. Lawrence, 92 Kan. 518; 52 A.L.R. (N.S.) 1165; Hensen v. Peter, 95 Wash. 628, L.R.A. 1918F, 682, Ann. L.R.A. 1918F, 688. (5) Inasmuch as plaintiffs prevented the holder of the notes from collecting the same or proceeding with the sale of the property, by the filing and prosecution of the former suit, they are estopped from asserting the Statute of Limitations in the present action. Marsden v. Nipp, 30 S.W. (2d) 77; Coney v. Laird, 153 Mo. 408, 55 S.W. 96; Union Ins. Co. v. Dice, 14 Fed. 523; Wilkinson v. Flowers, 37 Miss. 579; Brown County v. Martin, 50 Ohio, 197; Kelly v. Donlin, 70 Ill. 378.

WESTHUES, C.

Appellants filed a petition in the Circuit Court of Washington County, Missouri, against respondents to enjoin them from proceeding to foreclose two deeds of trust. The trial court found the issues in favor of respondents and dismissed appellants' petition. From the judgment entered appellants appealed.

The notes described in the deeds of trust were for $3000 and $5000, hence our appellate jurisdiction.

Appellants had previously filed injunction proceedings to prevent a foreclosure of the same deeds of trust. In that case the trial court granted the relief prayed for, but on appeal this court reversed the judgment of the trial court. The issues in that case involved the question of the payment of the notes. That question was fully adjudicated in that case and the deeds of trust were declared to be valid and the notes described therein unpaid. [See Cordia v. Richards, 329 Mo. 1166, l.c. 1168, 48 S.W. (2d) 878.]

Thereafter the holder of the notes again attempted to foreclose the deeds of trust. The trustee named in the deeds had died and the sheriff of the county, who was named in the instruments as a substitute trustee, proceeded to advertise the property for sale. Prior to the date of the proposed sale the sheriff refused to proceed, asserting as a reason for his refusal that the notes described in the deeds of trust had been barred by the Statute of Limitations. The holder of the notes then filed an affidavit in the circuit court, setting forth the facts, and asked the court to appoint a substitute trustee as provided for by Section 3135, Revised Statutes 1929 (Mo. Stat. Ann., pp. 8167 and 8169). The court appointed respondent, M.C. Matthes, as substitute trustee. Matthes then proceeded to re-advertise the property for sale. The sale was to take place on the 15th day of August, 1932. Appellants filed their petition, a temporary injunction was issued and again the proposed foreclosure was halted. A change of venue was granted and the special judge, who heard the case upon the merits, dissolved the temporary injunction and dismissed appellants' petition.

[1] While other points were made in the motion for new trial and in the briefs here, the only charge in the petition, filed by appellants, was that the notes were barred by the Statute of Limitations. If the notes were so barred appellants were entitled to the relief prayed for. If they were not barred the petition was properly dismissed. This, as we shall see later, was the sole issue presented to the trial court by appellants' petition. The note for $3000 was dated October 16, 1919, due twelve months after date. The note of $5000 was dated March 17, 1919, due six months after date. Interest on the $3000 note was paid October 16, 1920, and the interest on the $5000 note was paid September 17, 1920. For the purpose of this case we will consider that the Statute of Limitations commenced on September 17, 1920. The property described in the deeds of trust was first advertised for sale in August, 1927. Appellants filed a petition on August 29, 1927, to enjoin the sale, on the ground that the notes had been paid. A restraining order was issued, which, upon a hearing on the merits, was made permanent. The restraining order, therefore, continued to be in force until this court, on April 2, 1932, reversed that judgment. Under the restraining judgment, entered by the circuit court, the holder of the notes could not have foreclosed under the deeds of trust, nor could he have sued in a court to enforce the payment of the notes without being in contempt of court. In the opinion, by this court, in the first case we find the following statement:

"The court (meaning the trial court) found that the notes had been paid; that the deeds of trust should be canceled, and that defendants should be enjoined from foreclosing the deeds of trust and collecting the notes. Judgment accordingly, and defendants appealed." (Italics ours.)

The Statute of Limitations was, therefore, tolled from the 29th day of August, 1927, to the 2nd day of April, 1932, a period of approximately five years and seven months. A proceeding to foreclose a deed of trust tolls the Statute of Limitations. This question was considered at length in Friel v. Alewel, 318 Mo. 1, 298 S.W. 762, l.c. 764, 765 (4), etc. That opinion construed the meaning of Section 865, Revised Statutes 1929 (Mo. Stat. Ann., p. 1153), prohibiting the foreclosure of a deed of trust in a case where the note...