Gold Lumber Co. v. Baker

• Decision Date: 05 January 1931
• Citation: 36 S.W.2d 130,225 Mo.App. 849
• Parties: GOLD LUMBER COMPANY ET AL., RESPONDENTS, v. RUSSELL W. BAKER ET AL., APPELLANTS
• Court: Kansas Court of Appeals

36 S.W.2d 130

225 Mo.App. 849

GOLD LUMBER COMPANY ET AL., RESPONDENTS, v. RUSSELL W. BAKER ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

January 5, 1931

Appeal from Circuit Court of Pettis County.--Hon. Dimmitt Hoffman Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

H. T Williams for respondents.

H. K Bente for appellants.

CAMPBELL, C. Boyer, C., concurs. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

This is an equitable action by the Gold Lumber Company in its own behalf and as assignee of other lien claimants for the adjudication and determination of all liens and interests affecting certain lots and the dwelling house thereon in the city of Sedalia under the provisions of Section 7240 et seq., Revised Statutes 1919.

The petition is not assailed and the amount sued for is not contested.

The defendant Slane answered, so far as is necessary to state, that on February 19, 1926, Russell W. Baker and wife purchased the property and that he, on that day, loaned to them the sum of $ 1200, evidenced by two notes payable to him of $ 600 each, the payment thereof secured by a deed of trust on the property; that one of said notes was, on that day, sold to defendant, Joseph Hirtl, and the other to B. S. Tavener; that thereafter the dwelling house situate on the lots was partially destroyed by fire; that the Bakers collected $ 875 insurance on the building and deposited that sum with him, with the understanding that he was to advance to them out of the $ 875 sums to pay for repairs of the damaged building, which repairs the Bakers agreed to make; that he never authorized the Bakers to make any change from the plans of the original house nor consented that any improvements be made upon the premises save and except that of repairing the partially destroyed building; that in the month of May he learned the Bakers were not keeping their agreement but were making arrangements for more elaborate improvements, and that the Bakers then informed him that they were preparing to negotiate a loan in the sum of $ 2700 for the purpose of paying the debt to him and to pay for the reconstruction of the house; that a deed of trust was executed by the Bakers to a loan company for the purpose of obtaining the $ 2700; that the deed was duly recorded; that plaintiff and defendant Sellers filed with the loan company a statement of their respective accounts and requested payment thereof from the proceeds of the loan, and that they thereby waived their rights to claim a lien superior to the lien of his deed of trust. Joseph Hirtl filed a similar answer.

Reply was filed to each of said answers alleging, among other things, that after the fire Slane collected insurance in the sum of $ 875 for the use and benefit of the holders of the two $ 600 notes and that the sum so collected was a payment on the notes.

Defendants Jessie A. Williams, C. C. Williams and H. T. Williams answered that they claimed an interest in the property by virtue of a deed of trust securing a note in the sum of $ 135, which deed was recorded in the office of the recorder of deeds for said county on the 23rd day of February, 1926, and prayed the court to determine and adjudicate their right and interest in said property.

Defendant Sellers answered that the Bakers were indebted to him in the sum of $ 240 for work, labor and material furnished to them by him in the construction of the dwelling house on the lots, for which amount he prayed judgment and for the enforcement of the lien and that the interest of the parties be adjudged and determined.

Upon hearing the court found that prior to the 19th day of February, 1926, the defendant, Jessie A. Williams, owned the lots and on that day conveyed them to the Bakers and on that day the Bakers executed the two $ 600 notes and secured the payment thereof by deed of trust upon the lots; that Bakers also executed a note in the sum of $ 135 to Jessie A. Williams and secured the payment of the same by a deed of trust on the lots; that at that time there was an old house on the lots which was, nine days later, totally destroyed by fire; that no attempt was made to rebuild on the old site but that a new modern house was erected on the lots on a different spot from the one on which the old house stood; that no salvage of any consequence was obtained from the old house; that there was no question as to the correctness of the claims of the plaintiff or of the defendant Sellers for labor and material; that insurance on the old house had been taken out for the benefit of the defendant Slane as mortgagee; that after the fire he collected the sum of $ 875 insurance which applied as a payment on the $ 1200 deed of trust debt; that at the time of the fire Slane also had in his hands the sum of $ 295, being a part of the $ 1200 loan, and which he had not paid to the Bakers, which sum further reduced the said deed of trust debt so that only $ 30 of that debt remained unpaid; that the deed of trust debt in the sum of $ 135 is subservient to the first deed of trust; that the value of the new house is $ 3,000 and the value of the two lots $ 600, and upon such finding adjudged that the liens of plaintiff and defendant Sellers were paramount liens upon the new dwelling house; that the unpaid portion of the $ 1200 deed of trust debt is $ 30 and a first lien upon the lots and that the lien of the deed of trust for $ 135 in favor of Jessie A. Williams is likewise subject to said lien on the house but is a second lien on the lots. Upon this finding judgment was entered that the house and lots be sold together and that the proceeds of the sale, after the payment of costs, be distributed five-sixths to the plaintiff and defendant Sellers pro-rata, and that from the one-sixth thereof shall be paid the $ 30 and interest at 6% per annum from February 19, 1926, remaining unpaid on the $ 1200 deed of trust debt, and that the remainder of the said one-sixth be paid to defendant, Jessie A. Williams, in the sum of $ 125 and interest at 6% from February 19, 1926. Disposition of a possible surplus is not adjudicated.

The defendants Slane and Hirtl, only, appealed. The appeal was allowed to the Supreme Court, presumably upon the theory that a constitutional question was involved. The Supreme Court transferred the...