Guaranty Savs. & L. Assn. v. Springfield, No. 35933.

CourtMissouri Supreme Court
Writing for the CourtTipton
Citation139 S.W.2d 955
PartiesGUARANTY SAVINGS & LOAN ASSOCIATION, a Corporation, and LEWIS LUSTER, Trustee, v. CITY OF SPRINGFIELD, a Municipal Corporation, Appellant.
Docket NumberNo. 35933.
Decision Date07 May 1940
139 S.W.2d 955
GUARANTY SAVINGS & LOAN ASSOCIATION, a Corporation, and LEWIS LUSTER, Trustee,
v.
CITY OF SPRINGFIELD, a Municipal Corporation, Appellant.
No. 35933.
Supreme Court of Missouri.
Court en Banc, May 7, 1940.*

Appeal from Jasper Circuit Court.Hon. Ray Watson, Judge.

[139 S.W.2d 956]

AFFIRMED.

Kirby W. Patterson and W.D. Tatlow for appellant.

(1) The petition is based upon the common-law theory that the trustee in the deed of trust was the record owner of the freehold estate in the real estate described in the deeds of trust, from "the 9th day of February, 1927, until the sale of said real estate at trustee's sale and the conveyance thereof by trustee's deed on the 20th day of June, 1933." 41 C.J., sec. 1, p. 274. The Missouri rule is now, and has been for many years, that a mortgage or deed of trust only constitutes a lien on the property. Kennett v. Plummer, 28 Mo. 142; Wood v. Hildebrand, 46 Mo. 284; Masterson v. Ry. Co., 72 Mo. 347; Springfield ex rel. v. Ransdel, 305 Mo. 51; Reynolds v. Stepanek, 339 Mo. 809, 99 S.W. (2d) 65; Eurengy v. Equitable, etc., Corp., 107 S.W. (2d) 71. (2) The damages for the construction of the viaduct wholly in the street were purely consequential so that the city was not required to have them assessed and paid before constructing the same. This question has been recently considered by this court en banc where the numerous authorities will be found cited. Hill-Behan Lbr. Co. v. Skrainka Const. Co., 106 S.W. (2d) 483. The constitutional provision cited and relied upon in the petition (Sec. 21, Art. II, Const. Mo.) has no application to this case except that it created a cause of action for "damaging" property, where none before existed. Where the property is only damaged and no part of it taken, the constitutional provision "is silent as to the remedy, the party entitled to the right may resort to any common-law action which will afford him adequate and appropriate means for redress." Householder v. Kansas City, 83 Mo. 488. This construction has been followed by the court in many decisions, down to and including the Hill, etc., case, cited supra. Am., etc., Co. v. O'Malley, 113 S.W. (2d) 801. (3) A mortgagor, before condition broken and while in the possession of the property, can maintain a suit for injury or trespass to the property, or for consequential damages thereto, without joining the mortgagee, and recovery will be for the full amount of damages sustained. This has been repeatedly decided by the courts of this State. Logan v. Wabash Western Ry. Co., 43 Mo. App. 71; King v. Sligo Furnace Co., 190 S.W. 368; Pence v. Gabbert's Administrator, 70 Mo. App. 201; State ex rel. Kibble v. First Natl. Bank, 22 S.W. (2d) 185; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802; Craig v. K.C. Term. Ry. Co., 271 Mo. 516, 197 S.W. 141; Blankenship v. Kansas Explorations; 325 Mo. 998, 30 S.W. (2d) 471; Jones on Mortgages (7 Ed.), sec. 664. The judgment in favor of the mortgagor and the satisfaction thereof is a bar to a subsequent recovery by the mortgagee after condition broken. This, too, is directly decided in the cases, supra. (4) The courts of this State, until the instant case, have never been called upon to deal with the question as to whether a settlement in good faith with the fee owner as mortgagor before condition broken, and the payment to him of the damages, constitutes a bar against the mortgagee. It necessarily follows, as an inevitable conclusion, that a bona fide settlement and the payment of damages thereunder is the exact equivalent to the recovery of a judgment and satisfaction thereof. This has been directly decided by the courts of other states, and the dissenting opinion in the instant case, and there is no decision to the contrary, except the majority opinion in the instant case. Knoll v. N.Y.C. & St. L. Ry. Co., 15 Atl. 571, 1 L.R.A. 366; Shields v. Pittsburgh, 97 Atl. 124; Dexter v. Pa. Power Co., 193 Atl. 96; Fidelity, etc., Trust Co., v. Kraus, 190 Atl. 874; Appeal of Harris, 186 Atl. 92; Masterson v. Ry. Co., 55 S.W. 577; Chicago, etc., Ry. Co. v. Earl, 181 S.W. 925, 121 Ark. 514; Wilkes v. Southern Ry., 85 S.C. 347, 67 S.E. 292; First Natl. Bank v. Union Ry. Co., 284 S.W. 363; Harris v. Seaboard Ry. Co., 130 S.E. 322; Capital, etc., Co. v. B. & O. Ry. Co., 184 N.E. 862; Lawrey v. L. & N. Ry. Co., 153 So. 468; Ashville, etc. v. Baird, 116 N.C. 253, 80 S.E. 406; State ex rel. Kibble v. First Natl. Bk., 22 S.W. (2d) 193.

Frank B. Williams for respondent.

(1) It is well settled law that Section 21, Article II of the Constitution of Missouri, which provides that private property cannot be damaged for public use without just compensation: (a) Gives an absolute right and is self-enforcing, and that self-enforcing constitutional provisions may be supplemented by statutory laws and city charters, which do not contravene the constitutional provision, but which provide means for carrying out such provision. Hickman v. Kansas City, 120 Mo. 117; Tremayne v. St. Louis, 6 S.W. (2d) 935, 940, 320 Mo. 131; Householder v. Kansas City, 83 Mo. 495; Sheehy v. Railroad Co., 94 Mo. 574, 7 S.W. 579; Keith v. Bingham, 100 Mo. 300, 13 S.W. 683. (b) Refers to and regulates the right of eminent domain and applies to cases where private property is damaged for public use. Marshfield v. Brown, 88 S.W. (2d) 340. (c) Under said provision consequential damages are recoverable, and such recovery does not depend upon any question of negligence or nuisance. 20 C.J., 671, sec. 140; Chapman v. Railroad Co., 240 Mo. 592, 144 S.W. 469; St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298; Hannibal Bridge Co. v. Schaubacker, 57 Mo. 582. (d) Under said provision damages to a landowner are either direct or consequential. Direct damages represent compensation for that portion of the property actually taken and the diminished value of the remainder; any other damages are consequential. Blackwell v. Lees Summit, 32 S.W. (2d) 66. (e) Within the meaning of this section, the term "owner" includes any person who has an interest in the property that will be affected by the condemnation or appropriation, or who is capable of being damnified. A mortagee is an owner and his interest cannot be damaged for public use without paying just compensation. Houston North Shore Ry. Co. v. Tyrrel, 98 S.W. (2d) 786, 108 A.L.R. 1508; Morgan v. Willman, 318 Mo. 151, 1 S.W. (2d) 199, 59 A.L.R. 1518; Railroad v. Baker, 102 Mo. 553. (2) The city charter of the city of Springfield, a city of the second class, authorizes the city to institute condemnation...

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6 practice notes
  • Huff v. Union Elec. Co., No. 40183
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1980
    ...a deed of trust was an "owner of property" for purposes of due process. Guaranty Savings & Loan Ass'n v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955 (banc 1940). In its broader sense owner means any person beneficially interested in property. Siemer v. Schuermann Building & Realty Co., ......
  • Terry v. C. B. Contracting Co., No. 8356
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1965
    ...53 Mich. 587, 19 N.W. 196. 4 Guaranty Savings & Loan Association v. City of Springfield, Mo.App., 113 S.W.2d 147, 151, 346 Mo. 79, 139 S.W.2d 955; see Girard Life Ins. Annuity & Trust Co. v. Mangold, 83 Mo.App. 281; Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877, 878; Heitkamp v. LaMotte Gr......
  • State ex rel. Missouri Highway and Transp. Com'n v. Horine, No. 71339
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1989
    ...Lumber Co. v. Skrainka Const. Co., 106 S.W.2d 483, 485-86, 341 Mo. 156 (1937); Guaranty Savings & Loan Ass'n. v. City of Springfield, 139 S.W.2d 955, 957, 346 Mo. 79 (banc 1940). Third, once a landowner is entitled "to direct damages as the result of the loss of his property, he is entitled......
  • Laclede Gas Co. v. Abrahamson, Nos. 45230
    • United States
    • Missouri Supreme Court
    • November 12, 1956
    ...for damage to the land need not be paid until the damage is inflicted.' Guaranty Savings & Loan Assn' v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955, The purpose of this action is to take rights in certain described lands and to determine the compensation due the owners thereof for the ......
  • Request a trial to view additional results
6 cases
  • Huff v. Union Elec. Co., No. 40183
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1980
    ...a deed of trust was an "owner of property" for purposes of due process. Guaranty Savings & Loan Ass'n v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955 (banc 1940). In its broader sense owner means any person beneficially interested in property. Siemer v. Schuermann Building & Realty Co., ......
  • Terry v. C. B. Contracting Co., No. 8356
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1965
    ...53 Mich. 587, 19 N.W. 196. 4 Guaranty Savings & Loan Association v. City of Springfield, Mo.App., 113 S.W.2d 147, 151, 346 Mo. 79, 139 S.W.2d 955; see Girard Life Ins. Annuity & Trust Co. v. Mangold, 83 Mo.App. 281; Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877, 878; Heitkamp v. LaMotte Gr......
  • State ex rel. Missouri Highway and Transp. Com'n v. Horine, No. 71339
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1989
    ...Lumber Co. v. Skrainka Const. Co., 106 S.W.2d 483, 485-86, 341 Mo. 156 (1937); Guaranty Savings & Loan Ass'n. v. City of Springfield, 139 S.W.2d 955, 957, 346 Mo. 79 (banc 1940). Third, once a landowner is entitled "to direct damages as the result of the loss of his property, he is entitled......
  • Laclede Gas Co. v. Abrahamson, Nos. 45230
    • United States
    • Missouri Supreme Court
    • November 12, 1956
    ...for damage to the land need not be paid until the damage is inflicted.' Guaranty Savings & Loan Assn' v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955, The purpose of this action is to take rights in certain described lands and to determine the compensation due the owners thereof for the ......
  • Request a trial to view additional results

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