Girard Life Ins., Annuity & Trust Co. v. Mangold

• Decision Date: 15 April 1902
• Parties: GIRARD LIFE INS., ANNUITY & TRUST CO. v. MANGOLD.
• Court: Missouri Court of Appeals

67 S.W. 955

94 Mo. A. 125

GIRARD LIFE INS., ANNUITY & TRUST CO. v. MANGOLD.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

APPEAL — SUBSEQUENT APPEAL — FORMER DECISION — EFFECT — WASTE — ACTION BY MORTGAGEE — WHEN MAINTAINABLE — EVIDENCE — FINDING OF TRIAL COURT — REVIEW.

1. The decision of the court on appeal that a mortgagee may, after foreclosure, maintain an action for trespass committed before the maturity of the mortgage, is binding on a subsequent appeal.

2. Where, in an action for waste by the beneficiary in a deed of trust to secure the purchase price of land conveyed by him, it merely appeared that the contract of sale made by a third person was approved by the beneficiary, and that the third person was named as trustee in the trust deed, it was error to permit testimony in respect to the third person's knowledge that the land was purchased for the timber, and that he knew that the timber was being cut; for the evidence, though sufficient to prima facie establish that the third person was the agent of the beneficiary in the sale of the land, did not show his authority to consent to the cutting of the timber.

3. A mortgagee, after foreclosure, cannot maintain an action for the mortgagor's cutting of timber on the premises prior to the execution of the mortgage, though after an understanding that the mortgage should be executed, and though the timber was not taken away until after the execution of such mortgage.

4. The finding of the trial court that the mortgagor cut no timber after the execution of the mortgage is conclusive on appeal.

Appeal from circuit court, Iron county; Frank R. Dearing, Judge.

Action by the Girard Life Insurance, Annuity & Trust Company against John Mangold. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. L. Edwards, for appellant. L. F. Dinning, H. W. Phillips, and C. L. Keaton, for respondent.

BLAND, P. J.

The petition is in two counts, both for trespass, and founded on section 4572, Rev. St. 1899. Both state the same cause of action. They differ only in the prayers for damages. The first asks for treble damages; the second, for single damages only. The answer was a general denial and special defenses not necessary to be noted here. The evidence is that on April 25, 1891, plaintiff, through Thomas Lane, sold section 24, township 23, range 6 E., situated in Butler county, Mo., to John Cox, for $1,600. Cox paid $800 in cash for the purchase price. For the balance, Cox and his wife on June 20, 1901, executed their promissory note to plaintiff, due 18 months after date, to secure which they on the same date executed and delivered their deed of trust on the land to Thomas Lane, as trustee, for the benefit of the plaintiff. The note was not paid at maturity, and Lane, as trustee, foreclosed the deed of trust by sale. From the sale was realized the net sum of $375.90, to apply as a credit on the note. The balance of the note has not been paid. When Cox bargained for the land with Lane, he went to defendant and informed him of the fact that he was about to buy the land, and borrowed some money of him to make up the cash payment of $800, with the understanding that Cox would go upon the land, and cut timber thereon and make staves, and repay the defendant by delivering him the staves. As soon as Cox made the cash payment he went on the land with some hired hands, and cut timber and made staves to the value of six or seven...