Cupples v. Galligan

• Decision Date: 21 May 1878
• Citation: 6 Mo.App. 62
• Parties: SAMUEL CUPPLES, Respondent, v. HENRY GALLIGAN ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 62

SAMUEL CUPPLES, Respondent,

v.HENRY GALLIGAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 21, 1878.

1. A tender, to discharge a mortgage lien, must be a tender of the whole debt secured by the mortgage, and not merely that portion of the debt due at the time of the tender.

2. A deed of trust provided that the principal note should become due upon default of payment of interest. The trustee foreclosed for non-payment of interest. In an action to set the foreclosure aside, the court found that the amount due, and costs, had been tendered before foreclosure, and decreed that on payment, within a specified time, of the interest due and expenses, the foreclosure should be set aside. Held, in an action in ejectment by the purchaser at the foreclosure sale, that the decree setting aside the foreclosure was conditional, and, not having been complied with, the finding and decree were no defence; that though the decree estopped the plaintiff in ejectment to deny that the amount actually due at the time of sale, and all costs, had been tendered, yet that tender having been a tender of the amount then due merely because it cured the default caused by non-payment of interest, and having been subsequently withdrawn by neglect to comply with the terms of the decree, the right to redeem is gone, and the conditional decree operates as a confirmation of the foreclosure, and has the same effect as a dismissal of the bill to redeem.

APPEAL from St. Louis Circuit Court.

Affirmed.

BELL & HUFF, for appellants: A trustee's sale under a deed of trust passes no title when payment of all sums due under the deed of trust, and interest and costs, are tendered at and prior to the sale.-- Jackson v. Crafts, 18 Johns. 110; Campbell v. Macomb, 4 Johns. Ch. ^*534; Burnett v. Denniston, 5 Johns. Ch. ^*35; Edwards v. Insurance Co., 21 Wend. 367; Kortright v. Cady, 21 N. Y. 343; Arnot v. Post, 6 Hill, 65. A trustee acquires power to sell only upon the happening of a certain event, and a compliance by him with all the conditions imposed in the deed; and a sale before this passes no title whatever, but is void.--Hill on Mort. 141; Ormsby v. Tarascon, 3 Litt. 404; Smith v. Provin, 4 Allen, 416; Roarty v. Mitchell, 7 Gray, 244; Stine v. Wilkson, 10 Mo. 75; Power v. Kneckhoff, 41 Mo. 425.

J. M. & C. H. KRUM, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action of ejectment. The answer is a general denial; and also sets up, as a matter of special defence, that the plaintiff derives title only through foreclosure of a certain deed of trust, and the deed of the trustee made in consequence of such foreclosure, and that in a suit between the parties to this action the foreclosure was set aside and the deed of trust declared null. The answer further alleges that the foreclosure sale was in fact null because all money due was tendered before foreclosure, and the power of the trustee to sell thus taken away.

On the trial, the plaintiff, in support of his title, offered a deed of trust from Andrew J. Whelan and others to one Reilly as trustee, to secure the payment of certain notes, and also a deed of the trustee conveying the property in question to plaintiff as purchaser at the sale foreclosing the deed of trust. Defendant introduced the record of a suit in the Circuit Court of St. Louis County, in which defendant Whelan was plaintiff, and Cupples, the plaintiff in this suit, together with Reilly, the trustee, were defendants. From this record it appeared that the object of that action was to set aside the foreclosure of the deed of trust under which plaintiff in this action derives title, and to annul the deed of the trustee to plaintiff, on the ground that the amount due on the notes, and all costs, were tendered to plaintiff and also to the trustee, before the sale, and were refused. Answers were filed by Cupples and Reilly; and a decree was rendered in that cause, wherein it is recited that the court finds that at and prior to the date of the sale under the deed of trust the amount due and all costs and expenses were tendered by Whelan to Cupples and Reilly, and refused by them; and that on payment by Whelan to Cupples, within thirty days of the decree or of its final affirmance, of certain interest-notes and expenses of sale, the trustee's sale and deed “be and the same is hereby set aside, annulled, and declared void.” The decree further provides for the surrender of the notes on payment, and for the cancellation of any credits made by Cupples on the principal note at the date of the sale.

Defendants asked the court to declare that on all the evidence plaintiff was not entitled to recover. This instruction was refused, and there was a finding and judgment for plaintiff; from which defendants appeal.

It is claimed by respondent that the decree of the Circuit Court was conditional, and that, its terms not having been complied with, there is no decree setting aside the decree to Cupples, and that be ought, therefore, to recover upon his legal title. It is contended by appellants that whether the decree of the Circuit Court be absolute or conditional is immaterial; that the fact that all amounts due...