Gale v. Nolan, 6087.

• Decision Date: 15 February 1940
• Docket Number: No. 6087.,6087.
• Citation: 137 S.W.2d 974
• Parties: GALE et al. v. NOLAN et al.
• Court: Missouri Court of Appeals

137 S.W.2d 974

GALE et al. v. NOLAN et al.

No. 6087.

Springfield Court of Appeals. Missouri.

February 15, 1940.

Rehearing Denied March 12, 1940.

Cross-Appeal from Circuit Court, New Madrid County; L. H. Schult, Judge.

"Not to be published in State Reports."

Suit by Floyd B. Gale and another against Gertie Nolan and others, to foreclose a mortgage under the provisions of Mo.St. Ann. §§ 3070, 3071, pp. 1898, 1899. From an unsatisfactory judgment, the parties cross appeal.

Reversed and remanded with directions.

R. F. Baynes, of New Madrid, for plaintiffs-appellants.

R. W. Hawkins and N. C. Hawkins, both of Caruthersville, for defendants-appellants.

FULBRIGHT, Judge.

This cause originated in the Circuit Court of New Madrid County and was an action to foreclose a mortgage under the provisions of Sections 3070 and 3071, R.S.Mo. 1929, Mo.St.Ann. §§ 3070, 3071, pp. 1898, 1899.

Defandants filed their answer denying that plaintiffs were the owners of the note and deed of trust sought to be foreclosed and then plead an equitable defense in the nature of estoppel and asked for an accounting for rents and profits. The replication was a general denial.

Thereafter, the cause was tried and on the 25th day of February, 1939, at the regular January Term, 1939, of the Circuit Court of New Madrid County, the court made its finding of fact and rendered the following judgment:

"It is Therefore Ordered, Adjudged and Decreed That the plaintiffs herein have judgment for and recover a judgment against land described in the petition and mortgage, as follows: 118.04 acres of that part of the Southeast Quarter of Section 19, Township 23, North, Range 12 East of the Fifth Principal Meridian, lying north of the right of way of the St. Louis Southwestern Railway, New Madrid County, Missouri, in the sum of Seven Hundred, Four and 81/100 ($704.81) Dollars; that a lien upon said lands for said amount is hereby declared, adjudged and fixed on account of said mortgage, and plaintiffs are adjudged to have the right to enforce and foreclose the same and to sell said lands or so much as shall be necessary for such purpose to satisfy said lien and cost of sale and costs except the costs previously taxed to plaintiff, and to sell the same by execution by the sheriff of this County, according to the terms of said mortgage and the statutes in such case.

"No execution shall issue herein until after the ninety days allowed defendants within which to pay the amount found due by the court ($704.81) and if plaintiffs take an appeal herein no execution shall issue until the appeal be disposed of, and the further order of this court."

Motions for a new trial, by plaintiffs and defendants, were overruled and the cause reaches us on cross-appeals.

The mortgage upon which the petition is based was executed on January 1, 1922, and was given to secure a note of even date, drawing 6% interest, principal and interest payable in semi-annual installments, payable to the Federal Land Bank of St. Louis, a corporation, or order, for the sum of $3,000. Among other things, the mortgage provided that in case of default in the payment of any part of the obligation the whole of said mortgage debt shall, at the option of the mortgagee, or its assigns, become due and payable in its entirety, and the said mortgagee or holder of said note may thereupon foreclose this mortgage for the collection of the whole of said debt, interest, et cetera, by decree of foreclosure in any court having jurisdiction of the subject matter and the parties. The note and mortgage was executed by W. D. Nolan, now deceased, and Gertie Nolan, his wife. W. D. Nolan, who was the owner of the land at the time the mortgage was given, died intestate on January _____, 1926, and left surviving him, his widow, Gertie Nolan and as his only heirs at law, two infant children, Imogene, born September 4, 1915 and William, who was younger. In August, 1929, a suit for state and county taxes was brought by the Collector of Revenue of New Madrid County, against Gertie Nolan, Imogene Nolan, a minor and the Federal Land Bank, and the Little River Drainage District. Summons were duly issued and served on said Bank and Little River Drainage District, also upon Gertie Nolan. It was admitted at the trial that Imogene Nolan had no guardian and curator appointed for her and had no guardian ad litem at the trial. William Nolan was not sued. The land was sold under judgment in that suit, to Opal Baskin, a sister of the defendant, Gertie Nolan, and an aunt of Imogene and William Nolan. Shortly thereafter, she was granted a school fund loan in the sum of $2,000, on said lands, at which time R. W. Baskin, father of Opal Baskin and Gertie Nolan, and grandfather of Imogene and William Nolan, was a member of the County Court. No payments were ever made on said mortgage, which was later foreclosed and New Madrid County became the purchaser at the sale, January 31st, 1933.

On the 9th day of January, 1935, said county entered into a written contract with Floyd B. Gale, whereby it agreed to sell to him the lands for $1,200; $200 was paid in cash; the remaining $1,000 to be paid when the county perfected the title to the land. Plaintiff Gale entered into possession with the understanding if the county failed to perfect the title he would account for the rents and profits, and the $200 which he had paid in cash was to be refunded to him. Approximately 100 acres of the land described in the contract were tillable, and evidence somewhat vague and indefinite was offered as to the rental value per acre for the years 1934 to 1938, inclusive.

Subsequently, plaintiff Gee reimbursed Gale for the $200 paid the county and became the owner of the contract with the county. Thereafter, plaintiffs purchased the note and deed of trust, which is the subject of this litigation, from the Federal Land...