Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County

• Decision Date: 19 December 1921
• Docket Number: No. 22426.,22426.
• Citation: 236 S.W. 58,291 Mo. 54
• Court: Missouri Supreme Court
• Parties: HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al. HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al.

236 S.W. 58

291 Mo. 54

HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al.

HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al.

No. 22426.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by the Hurst Automatic Switch & Signal Company and another against the Trust Company of St. Louis County and others. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.

W. W. Cohick, of St. Louis, for appellants.

Joseph C. McAtee, of Clayton, for respondent Trust Co. of St. Louis County.

Stonewall J. Walton, of Buell, for respondent Walton.

Julius R. Nolte, of Clayton, for respondent Bode.

SMALL, C. I.

This is the second time this case has been before this court. The petition was in equity filed April 8, 1914, to cancel and set aside a trustee's sale and deed of certain lands made February 28, 1914, and to redeem the property from the deed of trust (which was executed by Mrs. Massey, a prior owner) under which the sale was made. The plaintiff company was the owner of the property subject to the deed of trust; plaintiff Fred Hurst was its tenant; the defendant trust company was the trustee named in said deed of trust, and owner of the Massey note secured thereby; defendant Bode was the sheriff of St. Louis county, who was designated in the deed of trust to act as trustee in the absence or refusal to act the trust company; defendant Stonewall Z. Walton was the purchaser for $17,605 at the foreclosure sale made by defendant Bode, sheriff, as substitute trustee. On the original trial of the case in the circuit court the court rendered judgment for the defendants, but on appeal to this court we reversed the judgment and remanded the case, with directions. 216 S. W. There was a charge in the petition that the property was sold by the sheriff as trustee, to Walton at an inadequate price after lawful tender of the amount due on the note secured, ant" that

"the said defendants and all of them had agreed and conspired together to force a pretended sale of said property by the said Bode as aforesaid for the purpose of unlawfully acquiring title and possession of the same at a price much less than the said property was worth, and that the refusal of the said trust company in the manner and form aforesaid and the said pretended sale of the said property by the said Bode, as aforesaid were dictated by and made pursuant to the terms of the same unlawful agreement and conspiracy aforesaid."

An examination of the opinion of this court will show no evidence or finding of any intentional wrongdoing on the part of the defendant sheriff, and that he acted as substitute trustee in good faith on the written refusal of the trust company to act as such; nor is there any finding that any tender of payment of the Massey note or deed of trust was made before sale thereunder. But the court did find that there was an agreement between the trust company and Walton to discourage bidding at the trustee's sale, and that Walton should become the purchaser. The court uses the following language in concluding its opinion and reversing and remanding the case:

"The whole evidence leaves no doubt in the mind of this court that the price at which the land was sold was inadequate to the extent at least of $12,395, and that this inadequacy, or so much of it as operated to deprive the plaintiff corporation of the power to protect its own equity of redemption was caused by the action of defendant Walton tending to suppress bidding, that the fact that the plaintiff corporation had not received its certificate to transact business in this state was unfairly used for the purpose of disabling it from saving the property until the sale could be held, and that the sale was hurried by the trustee with reference to these conditions. Under these circumstances no choice is left us other than to reverse the decree of the circuit court for St. Louis county, and remand the cause, with directions to enter its decree in proper form, setting aside the said trustee's sale and the deed of trust to secure $13,000, executed by Walton and wife on the same day, for an accounting between the parties, and granting such reasonable time as to the court shall seem just and proper for the redemption of the property upon payment by the plaintiffs of the sum found to be justly due for that purpose, which is accordingly done."

After Walton purchased the property at the trustee's sale he brought suit in unlawful, detainee against plaintiff Fred. Hurst, tenant of the plaintiff company, and obtained judgment and possession of the property. Also collected judgment from him or the sureties on his appeal bond for unlawful detention thereof. There is also a suggestion that Walton sold or transferred the property pendente lite.

Our mandate was in the usual form to the effect, among other things, that plaintiffs "should be restored to all things lost by reason of the judgment" reversed. `Upon return of the case to the circuit court, the plaintiffs filed, on January 21, 1920, a petition or statement for accounting in the case for rents and profits, damages and waste to the property, conversion of crops and costs and expenses of the litigation, including attorney's fees and other expenses and costs of litigation not taxable as costs. There was also a claim for $929.26 on account of moneys paid out in satisfaction of the judgment defendant Walton obtained against the plaintiff Fred Hurst in said unlawful detainer suit, which was,, paid by the bondsman of said Fred Hurst in said suit. Also claim for $984 on account of extra amount paid out by said Fred Hurst for corn, hay, and fodder, since being evicted from said property. Plaintiffs also filed a motion for possession of the property. On the 26th day of February, 1920, the defendant trust company filed a statement of account in said cause, showing that it was the owner of the note of Mrs. Massey for $16,850, dated February 4, 1911, and due three years after its date, with interest notes attached. Also setting up the sale under the deed of trust securing said notes, which was set aside, and the purchase at said sale by defendant Walton, and setting out the purchase money in cash and notes which said Walton gave said trust company in payment of such purchase price and subsequent interest payments made by said Walton, and claiming that said sums were chargeable in the accounting herein. Defendant Bode filed a statement at the same time, showing that he had paid over all the proceeds that came into his hands, $17,605 from the sale set aside, in paying the costs of the sale, and the balance on the note secured, and he prayed to go hence with his costs.

These matters of accounting on said petition and statement of the plaintiffs and of defendants trust company and Bode coming on for trial, the court on the objection of said defendants refused to permit any testimony on the items contained in plaintiffs' petition or statement of account as against them; counsel for plaintiffs admitting he had no evidence they had ever been in possession of the property or committed waste thereon, but claiming they were jointly liable to account with defendant Walton under the decision and mandate of the Supreme Court in the case.

The court then heard the evidence as to the amount due on the Massey note and deed of trust owned by the trust company, and found the amount to be, principal and interest, $25,923.93. There was evidence that on the day of sale, but just prior thereto, the plaintiffs had procured a party who offered to purchase the said Massey note, but the defendant trust company refused to sell it. No offer or tender of payment of said note was, however, made. The court decreed that upon the payment of said sum found due with six per cent. interest from the date of the decree, March 26, 1920, within 30 days from said date, said trustee's sale and deed to Walton should be set aside and for naught held, and that defendant trust company and Bode have judgment on the statement of account filed by plaintiffs, and that plaintiffs take nothing thereunder as against them, "the right being reserved to determine any matter arising between plaintiffs and defendant Walton after redemption." Plaintiffs also duly filed motion for new trial. Subsequently said judgment was modified by reducing the amount due the said trust company on its said note, and required to be paid by the plaintiffs in order to redeem to $23,932.74. Plaintiffs' motion for new trial and motion for possession of property were thereupon overruled. Nothing further seems to have been done with reference to the accounting between plaintiffs and defendant Walton. Plaintiffs duly prosecuted their appeal to this court. Further matters in the record, relevant to the disposition of the appeal, may be mentioned in the opinion which follows.

II. Learned counsel for respondents earnestly insist that this appeal was premature, because it was taken before an accounting was had between plaintiffs and defendant Walton, and therefore prior to any final judgment as to all the parties. But we do not so regard the judgment rendered. Said decree adjudged that plaintiffs take nothing under their petition for accounting against defendants trust company and Bode, and was to the effect that they were entitled to no accounting at all against defendant Walton unless and until they redeemed the property, by paying the amount found due the trust company. This was a conditional decree, it is true, but it was a final decree that plaintiffs were entitled to no accounting against said Walton, until they made such redemption, which they might never do. This disposed of the whole controversy as to all the parties under the facts existing at the time the decree was rendered. Furthermore, the judgment of this court on the former appeal was a final judgment in ...