Eitelgeorge v. Mut. House Bldg. Ass'n

• Decision Date: 31 October 1878
• Citation: 69 Mo. 52
• Parties: EITELGEORGE, Plaintiff in Error, v. THE MUTUAL HOUSE BUILDING ASSOCIATION.
• Court: Missouri Supreme Court

69 Mo. 52

EITELGEORGE, Plaintiff in Error,

v.THE MUTUAL HOUSE BUILDING ASSOCIATION.

Supreme Court of Missouri.

October Term, 1878.

Error to Jackson Circuit Court.--HON. SAM'L L. SAWYER, Judge.

Ballingal & Gwynne for plaintiff in error.

Dunlap & Freeman for defendant in error.

NORTON, J.

The petition in this case substantially alleges that Mittie E. Benton and William A. Benton, her husband, were owners of certain real estate in Kansas City, which, on the 21st day of January, 1874, was conveyed by them to J. F. Allen, to secure a promissory note of said Benton to the defendant for about $880, payable in monthly installments; that it was provided in said deed that in the event of the failure of Benton to pay any of said installments for three months after the same became due, the whole debt should become due, and the trustee be authorized to sell said real estate at public vendue for cash. It is also alleged that on the 28th day of January, 1874, the said M. E. and W. A. Benton executed a deed conveying the same real estate to G. F. Ballingal, in trust to secure the payment of a note executed by said Benton to plaintiff, for the sum of $906; that on the 20th day of March, 1874, Allen, the trustee in the first mentioned deed, advertised said real estate, and on the 9th day of April, 1874, sold the same at public vendue, and that defendant, through its president, became the purchaser for the sum of $3,000, and that the trustee executed a deed to defendant therefor. It is also alleged that of the purchase money remaining after the payment of the debt secured in the deed of trust, there was the sum of $2,200, and asks that the debt secured in the deed of trust to Ballingal be paid out of said surplus. It is also alleged that on the 8th day of September, 1874, said W. A. Benton, for value, transferred and assigned all his right and interest in the proceeds of said sale to plaintiff, and judgment is prayed for the same.

The answer contains a specific denial of the allegations of the petition, except as to the execution of the deed of trust to Allen of date January 21st, 1874.

On the trial of the cause, the petition was dismissed and judgment was rendered for defendant, which we are asked to review, chiefly on the ground that defendant is estopped from denying the validity of the sale made by Allen on the 9th day of April, 1874, and that the judgment is against the evidence.

It is agreed that the evidence showed the following state of facts: Benton and wife made the deed of trust to Allen as set out in the petition. Plaintiff had a deed of trust on the same property second to said first mentioned deed of trust for $906. At the request of the board of directors of defendant, Allen, trustee, advertised and sold on the 9th day of April, 1874, the premises described in the petition and in said deeds of trust, at which sale defendant, through its president, Askew, bought said property at the sum of $3,000. The note secured to be paid by said deed of trust amounted at the time of sale to $640. No deed was made by the trustee to defendant. On the day of the sale, or the day after, the trustee, Allen, told plaintiff that defendant bought the property at $3,000, and that plaintiff's deed of trust was cut out. On the 21st day of April, 1874, said sale was reported to the board of directors of defendant at a regular meeting thereof, and they were informed that the association had bought the property at $3,000. At said meeting said board appointed a committee to confer with Benton, and endeavor to get him to take a lease of said property from said association, as said association had bought the same at said sale. In May, 1874, said committee reported to the board at a regular meeting thereof, that Benton declined taking a lease, giving as a reason that the sale was invalid. In July, 1874, said board of directors authorized the institution of an action of ejectment against Benton, to recover possession of said property, by virtue of the title required by said association at said sale. The said action was instituted in July, 1874, but was afterwards dismissed by the association in May, 1875, the dismissal thereof having been directed, in fact, September 6th, 1874. Defendant claimed title to said property by virtue of said sale up to September 6th, 1874. From that date defendant believed the sale to be invalid. On September 8th, 1874, plaintiff, asked Askew and Allen to pay him the surplus so assigned to him, having previously, about July, 1874, asked them for so much of the surplus as would pay his note. On or about the 20th day of September, 1875, defendant sold said property under a deed of trust, executed by Benton and wife to defendant, and dated 1870, and bought the same at such sale for the amount of its debt.

1. DEED OF TRUST: premature sale.

It clearly appears from the face of the petition, as well as from the deed of trust...