Finnerty v. John S. Blake & Bro. Realty Co.

• Decision Date: 23 December 1918
• Docket Number: No. 18805.,18805.
• Citation: 276 Mo. 332,207 S.W. 772
• Court: Missouri Supreme Court
• Parties: FINNERTY v. JOHN S. BLAKE & BRO. REALTY CO. et al.

207 S.W. 772

276 Mo. 332

FINNERTY v. JOHN S. BLAKE & BRO. REALTY CO. et al.

No. 18805.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from St. Louis Circuit Court; Leo G. Rassieur, Judge.

Suit by Kate Finnerty against John S. Blake & Bro. Realty Company and others to enjoin a sale under a deed of trust. Decree for plaintiff, and defendants appeal. Affirmed.

Frank E. Haskins, of St. Louis, for appellants.

T. J. Howe, of St. `Louis, for respondent.

WALKER, P. J.

This case, upon its submission, was regularly assigned to Commissioner Roy, but an opinion therein was not prepared by him on account of illness. This is an action in equity brought by the respondent to enjoin the sale of certain real property in the city of St. Louis, under a deed of trust executed by the respondent and her husband, Thomas Finnerty.

A temporary injunction was granted by the trial court, which upon a hearing was made perpetual, enjoining appellants from selling the right, title, and interest of respondent in the real estate described, and decreeing the deed of trust null and void as against her interest.

The property in question was conveyed on February 10, 1908, by John Finnerty and. wife to Thomas Finnerty and wife. On April 1, 1908, Thomas Finnerty and the respondent, his wife, executed a deed of trust on the property to Gustave Dammert, trustee, party of the second part, and Lillie Willemsen, party of the third part, to secure a note for $6,000, dated April 1, 1908, payable to the order of Lillie Willemsen three years after date, together with six interest notes for $150, each payable respectively in 6, 12, 18, 24, 30, and 36 months after date. There was no consideration for these notes. The deed of trust was signed by Thomas Finnerty and Kate Finnerty; the notes were signed by Thomas Finnerty alone. The deed of trust in describing the notes recites that Thomas Finnerty and Kate Finnerty were indebted to the payee in the note in the sum of $6,000 for borrowed money. Upon the deed of trust and notes being executed, and the latter indorsed in blank, without recourse, by Lillie Willemsen, they were turned over to Thomas Finnerty. He had the deed of trust duly recorded. Thereafter, the notes and deed of trust continued in his manual possession, and under his legal control, until the maturity of the notes, in April, 1911, when he caused an extension to be written upon the lack of the principal note for five years from April 1, 1911, provided 10 interest notes, each for $150, executed by him and payable to the order of Lillie Willemsen every successive six months thereafter, were paid when due. These extension interest notes were also indorsed in blank by Lillie Willemsen without recourse, and returned to Thomas Finnerty, and, with the principal note and deed of trust, continued in his possession and under his control until October 16, 1911, when he purchased from one J. N. Crebs a saloon and contents, including the leasehold on the corner of Ninth and Locust streets, city of St. Louis, for the sum of $6,000, paying for it in monthly notes of $125 each, signed by Thomas Finnerty and payable to the order of J. N. Crebs. To secure these monthly notes, Thomas Finnerty pledged to Crebs as collateral, the $6,000 Willemsen note and the deed of trust securing the payment of said note, and executed to Crebs an agreement, authorizing him upon default in the payment of any of the monthly notes to sell the collateral, either with or without notice.

Thomas Finnerty thereupon took possession of the saloon, operated it, and paid a number of the monthly notes as they became due. Crebs thereafter sold the unpaid notes to appellant John S. Blake & Bro. Realty Company (hereinafter designated as Blake & Bro.), for approximately their full value, to wit, about $4,000, and transferred to them the Willemsen $6,000 note and deed of trust and the contract pledging same to secure the payment of the unpaid monthly notes.

In March, 1913, after the transfer to Blake & Bro., Thomas Finnerty defaulted in the payment of the monthly notes; and upon written notice to him of their intention, in accordance with the terms of the pledge agreement, Blake & Bro....