Crecelius v. Home Heights Co.

• Decision Date: 20 December 1919
• Docket Number: No. 20528.,20528.
• Citation: 217 S.W. 508
• Parties: CRECELIUS v. HOME HEIGHTS CO. et al.
• Court: Missouri Supreme Court

217 S.W. 508

CRECELIUS v. HOME HEIGHTS CO. et al.

No. 20528.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by August P. Crecelius against the Home Heights Company, the Trust Company of St. Louis County, and others. From judgment rendered, the last-named defendant appeals. Affirmed.

T. K. Skinker, of St. Louis, for appellant.

J. L. Hornsby, of St. Louis, for respondent Theiss.

Frank J. Wiget, B. E. Hamilton, and W. C. Marshall, all of St. Louis, for respondent.

GRAVES, J.

Action to set aside two deeds of release on the ground of fraud. Plaintiff claims to be the owner and holder of a note of $3,000, made and executed by Emma Declue and Joseph A. Declue to H. L. Stevens. This note bears date July 2, 1907, and was payable three years from date. It was secured by a deed of trust, executed by the same parties to R. H. Stevens, as trustee for H. L. Stevens, which deed of trust covered lots 14 and 15 of Home Heights, a subdivision of surveys, 912, 48, and 1896 in township 46 north, range 6 east, in St. Louis county, Mo.

The Declue title in the above property subsequently passed to George A. Moss, who resubdivided it into 13 lots, numbered from 1 to 13. Lots 1 to 8 covered the east half of the said lots 14 and 15, as owned by the Declues. The first deed of release sought to be set aside by this action covers these lots, or, as described therein, as the east half of lots 14 and 15, supra. The second deed of release covers lots 9, 10, 11, and 12 of the resubdivision. Lot 13 has never been released from plaintiff's deed of trust. Both deeds of release were made by Beverly C. Stevens, as the alleged owner of this $3,000 note, supra.

In the sale of lots (12 or 13 were sold) in the resubdivision deeds of trust were usually placed thereon, and these new owners, and those interested in these subsequent deeds of trust account for the numerous defendants in the action. Of all the defendants, the Trust Company of St. Louis County is the only one appealing. This defendant is owner of lot 6 in the resubdivision, and acquired title thereto after the deed of release made by Stevens as to the east half of the old lots 14 and 15, supra.

The petition is voluminous, and pleads in detail all the transactions as to the property, from and after the deed of trust for the $3,000 note mentioned, supra. The court by its decree canceled the two deeds of release, foreclosed plaintiff's deed of trust, and ordered the property sold for the satisfaction of the plaintiff's debt of $3,000 and interest. The court further found the value of the several lots (1 to 13) in the said resubdivision, and made them liable in an order of sale set out in the judgment. Lot 13, never having been conveyed by Moss, was to be sold first. Lot 6, owned by appellant, was the seventh lot conveyed, thus leaving six unconveyed lots at that time. It was the seventh lot as to dates of deed, but the eighth lot as to time of the record of the deeds. Respondent Fred Theiss, who favors us with a brief, owns lot 1 of the resubdivision, which was the third lot alienated. Lots 1 to 7 are found to be worth $1,800 each. The order of sale is thus fixed by the court:

"Lots 1 to 7, each $1,800; lot 8, $375; lot 9, $300; lots 10 and 11, each $150; lot 12, $175; and lot 13, $200. That said 13 lots should be sold to satisfy plaintiff's said deed of trust in the following order: Lot 13 first; lot 12 next; lots 9, 10, and 11 next; lot 6 next; lot 8 next. Lots 7, 3, 2, and 1, being of equal value, should equally contribute to satisfaction of said deed of trust, and that one or more of them next sold to satisfy the same, so far as necessary. That if all of said lots are not required to be sold to satisfy said deed of trust, and any one or more be so sold, or after any be sold, and the entire proceeds thereof be not applied to such satisfaction, then the remainder of said four last-mentioned lots not sold and the proceeds of any such lot or lots not applied in such satisfaction should equally contribute as necessary to said satisfaction. That said lots 4 and 5 should equally contribute to such satisfaction, and be sold and applied thereto as may be necessary, and if but one of them be sold or but part of the proceeds thereof be applied, the other of them shall contribute out of any proceeds not so applied, so that said lots 4 and 5 shall equally contribute to such satisfaction. And the court thereupon adjudged and decreed that plaintiff's said deed of trust, securing said note for $3,000 with interest and costs aforesaid, be foreclosed against said lots as resubdivided, or so many thereof as may be necessary be sold to satisfy said lien and costs by the sheriff as upon sale under execution severally, and the proceeds thereof applied in such satisfaction as above determined, report whereof the said sheriff should make to the court for approval and for directions; that if any one or more of said lots liable to contribute equally as above determined should be sold and part or the whole of the proceeds thereof applied, the others of said lots liable to contribute and their proceeds, as necessary, should be charged with a lien or liens in favor of the owner or owners of the lot or lots entitled to such contribution as may be necessary to enforce equity thereof, with the right to enforce such lien or liens in lawful and proper manner or suit, or upon motion or petition filed in the same cause within 20 days after approval of the sheriff's sale hereunder, and at the same term as such approval, the court reserving the right, upon such motion or petition, to enforce such lien or liens by further orders with sale of any lot or lots charged therewith as may be necessary and proper."

When we say that Theiss' lot was the third lot alienated, we refer to the record of the deed. Lots 1, 2, 3, and 7 were all conveyed November 20, 1909, and all the deeds recorded November 26, 1909, but the deed to lot 1 was recorded at 4:50 p. m. and the others just one minute apart thereafter. This sufficiently outlines the case.

I. When boiled down there are but two issues involved upon the merits of this appeal: (1) Was the court right in canceling the two releases and enforcing the deed of trust held by plaintiff; and (2), as between appellant and respondent Theiss, is the method of sale the proper one? Theiss did not appeal, and thereby acquiesced in the judgment so far as he is concerned, so that he cannot complain of the judgment in its present form. The appellant can urge error in both respects, and is the only one who can challenge the present judgment. Respondent Theiss is interested in upholding the judgment, because lot 6, owned by the Trust Company was alienated after his lot, and, under the rule as to inverse order of alienation, would be liable for the debt of plaintiff before the Theiss lot could be taken. This rule the appellant contests upon the facts of this case. Appellant also urges some other matters of record, all of which will be considered in their order. Stripped of the technical objections to the pleadings and judgment, the two matters first above stated cover the case.

II. The final decree, and the one appealed from in this case, is of date February 12, 1917. The cause was tried in January, 1916, and upon submission the following was entered of record:

"All parties agree that, in case it becomes necessary to inquire into the value of this property, the matter will be set down for further hearing on that question; otherwise the case is now submitted."

On August 14, 1916 (during the May term), the court set aside the releases, and the various defendants filed their motions for new trial, and the cause was continued to the next September term. On October 13, 1916, and at such September term, the court by consent allowed plaintiff to amend his bill and ask for foreclosure, and allowed Theiss to file amended answer, and heard testimony as to the value of the lots, and overruled the motions for new trial. On December 26, 1916 (being a part and parcel of the regular September term of the court), the court seems to have discovered that no minutes had been kept of what was done on October 13, 1916. Accordingly the court, on said December 26th, at the same term, "from the knowledge and recollection of the court, and the judge thereof," caused to be entered as of October 13, 1916, a record showing the things actually done on that date. In the amended answer of Theiss, allowed to be filed as of date October 13, 1916, the doctrine of the inverse order of alienation was pleaded. The cause then passed by a duly entered order to the January term, 1917, when the court entered the final decree, including therein the preliminary degree of August 14, 1916, and all matters heard during the September term of that year.

This record entry of October 13, 1916, is challenged upon the theory that it is a nunc pro tune entry, and that it appears upon its face that it was ordered on the mere recollection of the judge. It is in no sense what we call a nunc pro tune entry, wherein written memoranda must be the basis of the entry. This entry is one made during the same term of the court, and at a time when the whole record was within the breast of the court. During such term the court had the right to make its record speak the truth, and direct that the entries be made to appear as of the dates they were directed to be made.

During the term the court has full control of the record, and can change or amend them as he sees fit....