Dobbins v. City Bond & Mortgage Co.

• Citation: 124 S.W.2d 1111,343 Mo. 1001
• Decision Date: 08 February 1939
• Docket Number: 36170
• Parties: Lee Dobbins and Cora Fowler, Appellants, v. City Bond & Mortgage Company, a Corporation, the Lincoln National Life Insurance Company of Fort Wayne, Indiana, a Corporation, and W. O. Norman, Trustee
• Court: Missouri Supreme Court

124 S.W.2d 1111

343 Mo. 1001

Lee Dobbins and Cora Fowler, Appellants, v. City Bond & Mortgage Company, a Corporation, the Lincoln National Life Insurance Company of Fort Wayne, Indiana, a Corporation, and W. O. Norman, Trustee

No. 36170

Supreme Court of Missouri

February 8, 1939

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

Jay L. Oldham for appellants.

(1) The court erred in refusing to decree and adjudge, under the pleadings and evidence, that the trustee's deeds put of record September 24, 1936, in Book B-3264 at pages 274 and 275 in the office of the Recorder of Deeds of Jackson County Mo., at Kansas City, purporting to convey all of South 15 feet of Lot 11 and Lots 12 and 13 in C. L. King's First Addition, an addition in Kansas City, Missouri, to the Lincoln National Life Insurance Company, a corporation, were null and void, as to these plaintiffs, and erred in refusing to set aside said deeds and sold same for naught and decreeing the trustee's sale and deeds were made at a time, when there was default in the terms of said deeds of trust instead of holding said trustee's deeds were void because made at a time when there was no default in the terms of said deeds of trust and dismissing plaintiffs' Bill in Equity for the want of evidence. (a) The alleged trustee's deeds put of record September 24, 1936, in Book-B-3264 at pages 274 and 275 in the office of Recorder of Deeds of Jackson County, Mo., at Kansas City, purporting to convey all of South 15 feet of Lot 11 and Lots 12 and 13, in C. L. King's First Addition, an addition in Kansas City Mo., to the Lincoln National Life Insurance Co., a corporation, with the other evidence in the case shows that said purported trustee's deeds were made at a time when there was no default in the terms of the deeds of trust and are null and void as to these plaintiffs and the trial court should have so held. Bunce, Admr. of Beck, v. Beck, 43 Mo. 280; Fisher v. Stevens, 44 S.W. 769, 143 Mo. 191; Swan v. Stevens, 143 Mo. 397, 45 S.W. 270; Baade v. Cramer, 278 Mo. 530, 213 S.W. 121; Canton Trust Co. v. Durrett, 320 Mo. 1208, 9 S.W.2d 927. (2) Equity will intervene to relieve against fraud or mistake in a trustee's sale, fraud or mistake is not to be presumed, but should be proved by clear, convincing and cogent evidence or circumstances. Masonic Home v. Windsor, 92 S.W.2d 713, 338 Mo. 880. (3) Court will hold trustee under trust deed in nature of mortgage strictly accountable in performance of his impartial duties, and will set aside sale by him under power conferred thereby and reinstate deed, if sale was not entirely fair and unexceptionable, or trustee abused wise or sound discretion in conduct thereof, with resulting injury to mortgagor or beneficiary of actual fraud. West v. Axtel, 17 S.W.2d 328, 322 Mo. 410.

Thomas L. Brown and Rex B. Parr for respondents.

(1) The judgment and decree of the trial court that the plaintiffs are not entitled to equitable relief, and that plaintiffs' petition should be dismissed for insufficiency of the evidence to entitled them to a decree in equity, should be sustained. (a) The alleged verbal agreement extending the time for payment of the notes and renewal of the deeds of trust, relied upon by appellants as the basis of their bill in equity to set aside trustee's deeds and reinstate the deeds of trust, is not proved by the evidence, in that no definite offer of renewal and acceptance of that offer is proved. It is an elementary principle of law that before a contract is created, a definite offer must be made and there must be a definite acceptance of said offer, constituting a meeting of the minds of the contracting parties. Reynolds v. South Side Natl. Co., 64 S.W.2d 300; Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1062; State ex rel. Equitable Life Assur. Society v. Robertson, 191 S.W. 989; Jesse v. Rolaff, 74 S.W.2d 890. (b) The alleged verbal agreement extending the time for payment of the notes and renewal of the deeds of trust, relied upon by appellants as the basis of their bill in equity to set aside trustee's deeds and reinstate deeds of trust, as proved by the evidence of appellants, is so indefinite and uncertain in its terms as to be of no legal force, and was not binding on respondents. Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1062; Hudson v. Browning, 264 Mo. 58, 174 S.W. 395; State ex rel. Equitable Life Assur. Society v. Robertson, 191 S.W. 989. (c) The alleged verbal agreement extending the time for payment of the notes and renewal of the deeds of trust, relied upon by appellants as the basis of their bill in equity to set aside trustee's deeds and reinstate deeds of trust, as proved by the evidence of appellants, is not supported by a good, valid and sufficient consideration, and is therefore a mere nudum pactum. A promise to do some act which the promisor is otherwise legally obligated to do is not a sufficient consideration to support a contract. In re Woods Estate, 288 Mo. 588, 232 S.W. 671; Storck v. Mesker, 55 Mo.App. 26; Wendover v. Baker, 121 Mo. 273, 25 S.W. 918; Moore v. Macon Savs. Bank, 22 Mo.App. 684; Wayland v. Pendleton, 85 S.W.2d 494; State ex rel. v. Shain, 93 S.W.2d 992. (2) While equity will intervene to relieve against fraud or mistake in a trustee's sale, fraud or mistake is not to be presumed, but should be proved by clear, convincing and cogent evidence or circumstances. The burden of proof, in proving the execution of the alleged extension agreement, was upon appellants and the proof offered did not sustain this burden, therefore the judgment and decree of the trial court dismissing plaintiffs' petition for insufficiency of evidence should be sustained. Masonic Home v. Windsor, 92 S.W.2d 713, 338 Mo. 880; Title Guaranty Trust Co. v. Sessinghaus, 28 S.W.2d 1004. (3) An understanding for a verbal extension of time of payment of note and renewal of deed of trust is not binding where one of the parties necessary to a completed agreement did not participate in the formation of such agreement or contract. (a) Appellant Lee Dobbins was a co-maker of the notes and deeds of trust, and was therefore a necessary party to an agreement for an extension of time of payment and renewal of deeds of trust, and under the evidence did not participate in the negotiations at the place and at the time when the alleged verbal extension agreement was executed, therefore said alleged verbal extension agreement is not binding on said appellant Lee Dobbins, and is therefore not binding on respondents. Reynolds v. South Side Natl. Co., 64 S.W.2d 301.

OPINION

Lucas, J.

Appellants began this suit in the Circuit Court of Jackson County, Missouri, by filing their bill in equity to set aside a trustee's sale and deed alleging there was no default in payment at the time of the foreclosure. The trial judge dismissed appellants' complaint and on the appeal the Kansas City Court of Appeals affirmed the judgment of the trial court, which opinion is found in 116 S.W.2d 200, but upon the dissent of one of the judges of said court the case came to this court.

Appellants alleged in their complaint that they were the owners of the real estate in question consisting of two duplex stucco apartment buildings in Kansas City on October 30, and December 19, 1929, at which times they executed their promissory notes in the total sum of $ 14,000 with interest at the rate of six per cent per annum and which notes were secured by two deeds of trust on said property and were payable to the City Bond and Mortgage Company of Kansas City, Missouri, and that respondent, W. O. Norman, was named as trustee therein and that the payee sold said notes to respondent. The Lincoln National Life Insurance Company. That said notes consisted of two principal notes in the sum of $ 5600 each and eight principal notes in the sum of $ 350 each and that the two large notes matured five years after date and the $ 350 notes matured one, two, three and four years after date. Four of the $ 350 notes were paid but four of the $ 350 notes and both of the large notes were not paid at maturity. The last of said notes matured December 15, 1934.

Appellants further alleged that after said notes matured the indebtedness was renewed and extended by the life insurance company for a definite period of time and for a valuable consideration. That the defendants unlawfully conspired in August, 1936, to foreclose the deeds of trust, and that the property was sold on August 31, 1936, thereunder, and that the life insurance company bid in the property. That appellants gave due notice of intention to redeem from said trustee's sale. That the trustee executed and delivered his trustee's deeds about September 24, 1936, and that respondents thereafter took possession of said property. Other allegations of the complaint are immaterial on this appeal. Appellants asked that the trustee's sale and the trustee's deeds be declared void and that the deeds of trust be reinstated.

The answer of all the respondents, after admitting their capacity, was a general denial.

The decree of the trial court was for the respondents because the evidence was insufficient to entitle appellants to relief.

To support the complaint the appellants produced evidence showing that at the time of the foreclosure there was a principal indebtedness past due on each apartment in the sum of $ 6300 and that there was interest due on both loans and that the life insurance company had paid taxes which appellants had not repaid and that the total indebtedness due and owing the life insurance company on said notes and for taxes advanced amounted to more than $ 13,000. Appellants admitted that the delinquencies existed at all times from the maturity of the obligations to the date of foreclosure but claimed...