Custer v. Kroeger

• Decision Date: 28 August 1922
• Docket Number: No. 22687.,22687.
• Citation: 243 S.W. 770
• Parties: CUSTER v. KROEGER.
• Court: Missouri Supreme Court

243 S.W. 770

CUSTER v. KROEGER.

No. 22687.

Supreme Court of Missouri, Division. No. 2.

August 28, 1922.

Appeal from Circuit Court, Lewis County; James A. Cooley, Judge.

Action by Daniel M. Custer against Loin Kroeger. Judgment for defendant, and plaintiff appeals. Affirmed.

Hilbert & Henderson, of Monticello, A. E. Haney, of Canton, and F. E. McCullough, of Edina, for appellant.

Stewart & Stewart, of Edina, H. S. Rouse, of Canton, and C. Dorian, of Edina, for respondent

DAVID E. BLAIR, J.

After demurrer to his amended petition was sustained by the trial court, plaintiff (appellant here) stood on said petition, suffered adverse judgment, and has appealed.

In substance said petition alleged that plaintiff was the owner of certain described lands in the state of Indiana, and executed and delivered to defendant a warranty mortgage thereon, securing the payment to defendant of a note for $2,530, due February 9, 1918. Said mortgage provided for foreclosure and sale of the land in the event of default in the payment of said note or interest; that plaintiff had no funds with which to pay off said note, except to negotiate another loan on the same land, and that, prior to the due date thereof, he took steps to procure a loan from third parties; that defendant had in his possession the abstract of title to said land, showing the condition of the title, and that at plaintiff's request defendant delivered said abstract to him, in order that he might exhibit the same the purpose of securing another loan; that thereafter, and before he had opportunity to use said abstract for such purpose, defendant "willfully, wrongfully, wantonly, and maliciously, and without lawful excuse, entered plaintiff's office and residence, * * * and, by force and arms, against the will and remonstrance of plaintiff, violently took said abstract of title away from plaintiff," and carried it away, and deprived plaintiff of the use of the same for the purpose for which lee had received it from defendant; that plaintiff did not have the means to pay fore new abstract, and that defendant knew that without such abstract plaintiff would default in the payment of said note, and that defendant willfully and deliberately planned and intended that such result should occur, in order that he might foreclose said mortgage and buy in said property at the foreclosure sale, without further consideration therefor; that when said note became due defendant failed suit to foreclose said mortgage, and secured judgment on said note and a decree of foreclosure, and an order of sale of the land, and, in pursuance of said decree and order, the sheriff of Elkhart county, Ind., on July 13, 1918, sold said land to the defendant, who bid for it the full amount of the judgment and costs, amounting to a total of $3,060.53, and said sheriff executed a deed therefor and delivered it to defendant.

"Plaintiff states that he was prevented from raising a loan and paying defendant's note as the result of defendant's above-mentioned acts and conduct, and that from the causes hereinbefore stated he was unable to procure another abstract until it was too late for him to use it for the purpose of preventing a judgment of foreclosure and sale of the land thereunder, and that if he had had use of an abstract he would have succeeded in procuring a loan as aforesaid and paying off said note when it became due." (Italics ours.)

Plaintiff further alleged that the amount due on said note on July 13, 1918, was $2,785.35, and that the value of the land was $10,000, and that the value of plaintiff's equity therein, which was lest to...