Hoffman v. Bigham, 27989.
| Decision Date | 03 February 1930 |
| Docket Number | No. 27989.,27989. |
| Citation | 24 S.W.2d 125 |
| Parties | SAMUEL HOFFMAN v. B.B. BIGHAM ET AL., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.
REVERSED AND REMANDED.
Horace Merritt for appellants.
(1) As to all the world the notice lis pendens is ahead of all other conveyances and actions that have anything to do with this title. The decree in the case gave the relief asked for, notice of which was contained in the lis pendens. Both equitable and common-law liens are protected by notice lis pendens: Mo. State Life Ins. Co. v. Ruers, 214 S.W. 860; Woolums v. Tappley, 196 S.W. 1127. (2) The court over objection of the defendants permitted the plaintiff to encumber the record with a mass of incompetent evidence to show that Bigham had acted as Spencer's agent in selling this property to Warrensburg. This was clearly incompetent because the whole matter had been adjudicated in the case of Bigham v. Warrensburg in which the same point had been made by Warrensburg, and in which case the same evidence had been introduced, including the testimony of Spencer, and the court had passed on it and decreed that Bigham was the owner of an undivided half interest in the property and vested title in him by its decree, and all this evidence by which the record is incumbered was taken from the record in that case. Bigham acquired his title after the deal with Warrensburg and with full knowledge of Spencer that he was interested in the deal. He acquired a good title: Board of Trustees v. Blair, 45 W. Va. 812; Walker v. Carrington, 74 Ill. 446. (3) The failure to advertise this foreclosure sale the required number of times will not invalidate the sale but the owners have a right to redeem the property. Adams v. Carpenter, 181 Mo. 613; Price v. Blankenship, 71 Mo. App. 548; Fuller v. Lee, 225 Mo. 319; Biffle v. Pullian, 125 Mo. 108. Grantor in a trust deed defectively foreclosed is entitled to redeem, and in a suit against him it is a good defense to offer to redeem. Springfield Engine Co. v. Donovan, 120 Mo. 423. (4) Bigham was not guilty of laches in not asserting his claims. He has been constantly trying to recover and secure his rights to this and other property and pressing his claims vigorously in the courts ever since the 22nd day of August, 1923 and placing his claims of record as fast as the courts awarded them to him, and in this case he is entitled to redeem this property, and in all good conscience and equity he is entitled to an accounting for all rents and profits received by the plaintiffs and Spencer against the mortgage debt. Walther v. Null, 233 Mo. 104. The law does not demand the utmost exertion of diligence in repelling a hostile invasion of ones' rights deliberately undertaken with full knowledge of all the facts. Potter v. Schaffer, 209 Mo. 598.
John C. Landis, Jr., and Byron Spencer for respondent.
(1) The sale was regular. (2) Appellants do not offer to redeem. (3) Do not come into court with clean hands. Rowley v. Rowley, 197 S.W. 152; Houtz v. Hellman, 228 Mo. 655; Carson v. Woods, 177 S.W. 623; Creamer v. Bivert, 214 Mo. 473. (4) Are guilty of laches. Roby v. Smith, 261 Mo. 192; Ready v. Smith, 170 Mo. 163; Baker v. Cunningham, 162 Mo. 134.
This is a suit to quiet the title to a parcel of land in St. Joseph, filed December 15, 1925. The judgment of the Buchanan County Circuit Court was for the plaintiff, and the defendants Bigham and Wachter have appealed. The other defendant, Stone, is not an appellant.
The common source of title is Byron Spencer. On June 1, 1921, he deeded the real estate in controversy to John C. and Marie Davis, taking back a purchase-money deed of trust securing the payment of a note for $6,000. Both these instruments were recorded July 2, 1921. About two weeks later, on July 15th, the Davises conveyed the property to R.G. Maxwell. This Maxwell deed was withheld from record nearly seventeen months, until December 4, 1923.
In the meantime, on August 21, 1923, the appellant Bigham brought a suit in the Buchanan County Circuit Court against the two Davises and one R.H. Warrensburg, claiming a half interest in the land; that the remaining half interest belonged to Warrensburg; and that John and Marie Davis were seized of the title merely as trustees for the two. The petition also sought an accounting. A lis pendens notice was filed in the Recorder's office the next day, August 22, 1923.
While Bigham's suit was pending, on May 23, 1924, the defendant (therein) R.H. Warrensburg was adjudged a bankrupt and the defendant (herein) Wm. M. Stone was appointed his trustee in bankruptcy. On July 11, 1924, R.G. Maxwell, who had received a deed from the Davises in 1921 as above recited, quit-claimed to Stone, the trustee in bankruptcy, and the latter was brought into Bigham's suit as a defendant. At any rate, he appeared and filed exceptions to the report of the referee therein. On October 2, 1924, the circuit court entered a final decree in the cause divesting title out of John C. and Marie Davis and vesting it in Bigham and Warrensburg, giving each an undivided half interest, "subject to all legal liens and encumbrances existing against the same." Bigham was further awarded a money judgment against Warrensburg for $4500. An execution was presently issued to Bigham under which Warrensburg's half interest in the real estate was sold by the sheriff to the appellant Wachter, who is Bigham's daughter, on November 28, 1924. Thus, through the decree in the Bigham suit and the execution sale, the appellants Bigham and Wachter claim to be the owners of the real estate.
The mortgagee, Byron Spencer, was not made a party to the Bigham suit and the court did not assume to adjudicate his interest in any way. During the pendency of the suit he caused his purchase-money mortgage, or deed of trust, to be foreclosed under the power of sale therein contained, for default in the payment of interest and taxes. The sale took place at the east front door of the court house in St. Joseph on June 25, 1924, and he, Byron Spencer, the mortgagee, bid in the property for $3050 and received a trustee's deed which was recorded August 13, 1924, nearly two months before the final decree was rendered in Bigham's case on October 2, as above recited. Spencer and his wife thereafter conveyed the property by general warranty deed to the plaintiff-respondent Hoffman, dated November 19, 1924, and recorded November 18, 1924, about ten days before the appellant Wachter bought in at the execution sale on November 28th. The respondent Hoffman claims title through this Spencer deed.
The petition is a conventional skeleton form, alleging the plaintiff to be the owner of the land, that the defendants claim some interest therein, and praying that they be divested of any such right, title or interest and that the title be vested in the plaintiff. The defendant Stone filed answer alleging his discharge as trustee in bankruptcy and disclaiming any interest in the property. The defendants Bigham and Wachter answered separately, the former claiming title to a one-half interest through the Bigham decree and the latter a half interest through the execution sale thereon. Thereafter the Bighams amended their answer by asking for an accounting of rents collected since July 1, 1924 (which was about the time Spencer bid in the property at the foreclosure sale), and praying for affirmative and general relief.
At this stage of the proceedings Byron Spencer, the common source of title, filed an intervening petition, setting out that by reason of the covenants of warranty in his deed to the respondent Hoffman, he was obligated to defend Hoffman's title. Then follows a lengthy recital to the effect that when he (Spencer) sold the property in controversy to John C. and Marie Davis in 1921, along with other real estate, the appellant Bigham undertook to act as his real estate agent for a commission, and was duty bound to represent his interests fairly, but instead, secretly became the purchaser of a part interest in the land through the Davises and fraudulently induced him (Spencer) to accept an inadequate price. The petition prays the court to adjudge the title in Hoffman, but if the defendants be found to have any interest therein, that they be required to pay the $6,000 principal of his purchase money mortgage with interest, back taxes, etc.; and that Bigham be required to refund the $500 real estate commission he had received, and also to pay the sum of $2,000 representing the amount in which Spencer alleged he had been cheated in the sale of the disputed land and the other properties to the two Davises.
Shortly thereafter the plaintiff (respondent) Hoffman filed a reply to the amended answer of the appellants Bigham charging Bigham's fraud as a real estate agent in the sale of Spencer's properties (much as Spencer had done in his intervening petition) and also affirmatively pleading the details of his (Hoffman's) chain of title, particularly the foreclosure proceedings under Spencer's purchase-money deed of trust, on faith of which he avers he purchased. As to these the reply states the foreclosure notice was duly published for twenty days from June 4 to June 25 in the Stock Yards Daily Journal. It is further alleged that the decree in Bigham's suit was not binding on him (Hoffman) because Spencer, his predecessor in title who owned the land when the decree was rendered, was not made a party to the suit. The reply prays that the plaintiff be adjudged the owner of the fee title and that the defendants be decreed to have no interest therein. A reply substantially similar was filed to the answer of the appellant Wachter.
The defendants Bigham and Wachter filed a demurrer to the intervening petition of Byron Spencer. While the demurrer was pending the plaintiff Hoffman filed his replies to their answers, which we have summarized in the last paragraph. Spencer...
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