Godfrey v. Stock

• Decision Date: 05 June 1893
• Parties: Godfrey, Appellant, v. Stock
• Court: Missouri Supreme Court

22 S.W. 733

116 Mo. 403

Godfrey, Appellant, v. Stock

Supreme Court of Missouri, First Division

June 5, 1893

Appeal from St. Louis City Circuit Court.

Reversed and remanded.

C. P. & J. D. Johnson for appellants.

(1) Under the facts stated in the petition, the plaintiff was entitled to redeem the real estate in question, so that the demurrer to the petition was improperly sustained. Revised Statutes, secs. 7079, 7080; Updike v. Elevator Co., 96 Mo. 160. (2) The defendant having appeared in the circuit court on the application of plaintiff to give the bond required by Revised Statutes, section 7080, and opposed the application, was precluded from afterwards claiming that the bond was not executed within a reasonable time. (3) The finding of the circuit court to the effect that the security given by plaintiff was "satisfactory" is conclusive against the defendant, unless it appear that the court abused the discretion which the statute vested in it in the matter. Revised Statutes, sec. 7080. (4) The statute (Revised Statutes, secs. 7079, 7080) is remedial, and should be liberally construed. Sedgwick on Construction of Statutory and Constitutional Law, pp. 308-310; McGehe v Draper, 21 Mo. 511; Vogler v. Montgomery, 54 Mo. 583.

Rassieur & Schnurmacher for respondent.

(1) A sale by a trustee, under a power contained in a trust deed operates as a complete foreclosure. Revised Statutes, 1889 sec. 7091; Jones on Mortgages [3 Ed.], sec. 1897; Plum v. Mfg. Co., 89 Mo. 162. (2) But where the cestuique trust, or his assignee, becomes the purchaser at such sale, the mortgagor's right of redemption continues for a year, provided the mortgagor gives security to the satisfaction of the circuit court, or, in case it is not in session, to the circuit clerk. Revised Statutes, 1889, secs. 7079, 7080. (3) But such security must be given at the date of the sale. Updike v. Elevator Co., 96 Mo. 160; Dawson v. Egger, 97 Mo. 36.

OPINION

Macfarlane, J.

-- We adopt the statement of counsel for respondent as giving a fair and concise abstract of the petition:

"This case comes here on plaintiff's appeal from the judgment of the circuit court, sustaining a demurrer to his petition. The petition states, in substance, that at and prior to February 11, 1890, plaintiff was the owner of a lot of ground on Walnut street, in the city of St. Louis; that on January 11, 1888, he had executed his deed of trust upon said premises to secure to one William M. Nolan the payment of an indebtedness for $ 5,000, in which deed of trust William A Meagher was named as trustee, with power to sell, in case of default on twenty days' notice, in the usual manner, by publication in a newspaper; that Nolan the cestuique trust, thereafter, transferred the debt secured by said deed to defendant, and that on February 11, 1890, the trustee, at the request of defendant, and for default in the payment of the principal and interest of said debt, sold the property in said deed described, in the manner and upon the notice and the terms provided for in the deed, and that at such sale defendant became the purchaser for the price and sum of $ 5,500.20; that on the day of sale, plaintiff notified the trustee and the defendant that he proposed to give bond for the redemption of the property, but that, nevertheless, the trustee executed and delivered a deed for the premises to defendant, and that defendant placed the deed on record.

"That on February 13, 1890, plaintiff applied to the circuit court of the city of St. Louis for leave to give security, to the satisfaction of the court, for the payment of the interest to accrue after said sale, upon the notes secured by said deed of trust, and for all damages and waste that might be occasioned or permitted by him, and for the redemption of the premises, in accordance with the statute; that defendant opposed said application and the right of plaintiff to give bond, on the ground that he had not used due diligence; that the court delayed passing upon the application until February 28, 1890, upon which day it approved a bond furnished by plaintiff in the sum of $ 2,000 conditioned that plaintiff should pay the interest on the notes described in the deed of trust from February 11, 1890, to February 11, 1891, and pay all damages and waste occasioned or permitted by him on the premises; that plaintiff was unable to make said application to give security after said sale, and until February 13, by reason of his being sick and disabled and confined in doors, and of his inability to see and procure the necessary surety to execute said bond.

"The petition further recites that defendant has acquired possession of the premises and has been collecting the rents thereof, and that on or about January 10, 1891, plaintiff offered to redeem from defendant, and tendered him the amount of principal and interest due under the deed of trust and all legal charges and costs created by the sale.

"The prayer is for an accounting; that plaintiff may be permitted to redeem the property from defendant; that the deed from the trustee to defendant be canceled, and that defendant be required to reconvey to ...