Evans v. United States Fidelity & Guaranty Co.

• Decision Date: 29 January 1917
• Docket Number: No. 12241.,12241.
• Citation: 195 Mo. App. 438,192 S.W. 112
• Court: Missouri Court of Appeals
• Parties: EVANS v. UNITED STATES FIDELITY & GUARANTY CO.

192 S.W. 112

195 Mo. App. 438

EVANS v. UNITED STATES FIDELITY & GUARANTY CO.

No. 12241.

Kansas City Court of Appeals. Missouri.

January 29, 1917.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Lucy B. Darnall against the United States Fidelity & Guaranty Company. There was judgment for plaintiff, and defendant appealed, A. F. Evans, plaintiff's executor, being substituted in her stead on her death after the appeal was perfected, but before it was submitted, and the cause being revived in his name. Judgment affirmed.

Ball & Ryland, of Kansas City, for appellant. A. F. Evans, of Kansas City, for respondent.

TRIMBLE, J.

This is an action upon a bond given to redeem real estate from foreclosure under deed of trust. Lucy B. Darnall was the holder of said deed of trust and became the purchaser at foreclosure. The bond to redeem was given by F. P. Brockett as principal with the defendant herein as surety. As first brought, the suit was by Lucy B. Darnall against said Brockett and his surety, the defendant herein. Service was not obtained on Brockett, and the suit was dismissed as to him. Mrs. Darnall obtained judgment for $1,000 the full amount of the bond, and the defendant appealed. After the appeal was perfected, but before it was submitted, Mrs. Darnall died, and her executor, Evans, was substituted in her stead, and the cause was revived in the name and style under which it now appears.

The bond sued on was given pursuant to section 2830, R. S. Mo. 1909, which forbids the existence of any right to redeem unless the foreclosed owner shall give security "for the payment of the interest to accrue after the sale, and for all damages and waste that may be occasioned or permitted by the party whose property is sold." The bond is conditioned as follows:

"Now, therefore, if the said F. P. Brockett shall well and truly pay all interest accruing on the note secured by said deed of trust from date of sale, to wit, October 17, 1912, to date of redemption, and shall pay, or cause to be paid, the costs of said foreclosure sale, and shall pay, or cause to be paid, all damages and waste that may be occasioned or permitted by said F. P. Brockett, then this obligation to be void; otherwise to be and remain in full force and effect."

At the trial a jury was waived, and the defendant offered to let judgment go for the plaintiff against the surety company for the interest accruing on the debt for the year Brockett had in which to redeem, and for the costs accruing to the time of the offer. The offer was refused, but the fact that it was made left only one question to be determined in the case, namely, whether or not the defendant was liable for waste on the premises during the time the bond was effective as affording Brockett an opportunity to redeem, to wit, one year following the date of the sale, which, as the condition of the bond stated, was on October 17, 1912.

If we correctly understand appellant's position, it is that the surety is not liable for any damages on account of waste during the year, because the bond covers only waste "that may be occasioned or permitted by said F. P. Brockett," and defendant says none was "occasioned or permitted" by him, since the property was, during all that time, in the hands of a receiver, and not in Brockett's possession. The claim is also made that the evidence is such that the amount of damages on account of waste occasioned or permitted after the execution of the bond cannot with reasonable certainty be distinguished and separated from that suffered by the property before the execution of said bond.

With reference to this last claim, that the damages on account of waste after the execution of the bond are not distinguishable from those arising before the execution thereof, the evidence amply tends to show that the damage arising after the filing of the bond and before the expiration of the year exceeded the amount of the bond, and this, too, without taking into consideration anything for interest accruing on the debt after the sale. There is therefore no danger that the judgment includes too much or covers anything by way of damages from waste accruing prior to the giving of the bond.

We, therefore, proceed at once to the consideration of appellant's other point, viz. that the surety is not liable for the waste herein complained of.

A clear understanding of the question presented requires a statement of the facts in the case. The note and deed of trust under which the foreclosure sale was had were executed August 9, 1909. Thereafter Brockett became the owner of the property — an apartment house in Kansas City — subject to said deed of trust, and on August 9, 1912, said debt matured. On April 4, 1912, the Second National Bank of New Albany brought suit against Brockett on a promissory note, and a writ of attachment was issued thereon, in aid of which attachment a receiver was appointed to take charge of the property involved in the suit at bar, and in this attachment suit Brockett made a special appearance limited to the application for the receiver. Said receiver was appointed September 3, 1912, and on September 18, 1912, Mrs. Darnall applied for leave to foreclose under her deed of trust. The order permitting sale in foreclosure was made September 20, 1912, and on October 17, 1912, the property was foreclosed and Mrs. Darnall bought it in. On October 23, 1912, the bond to redeem was filed. November 1, 1912, Mrs. Darnall filed, in the attachment suit, a motion for an order directing the receiver to deliver to her possession of the property sold under the deed of trust. On April 11, 1913, Mrs. Darnall filed an intervening petition in said attachment suit praying that possession of the property be delivered to her.

On April 22, 1913, Mrs....