Kennedy v. Siemers

• Decision Date: 05 February 1894
• Parties: Kennedy et al. v. Siemers et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 512

120 Mo. 73

Kennedy et al. v. Siemers et al., Appellants

Supreme Court of Missouri

February 5, 1894

Appeal from the St. Louis City Circuit Court. -- Hon. L. B Valliant, Judge.

Reversed.

M. H Cahoon and E. P. Johnson for appellants.

(1) The first bill of exceptions herein, making all of the proceedings before the referee on the first hearing before him matters of record, was filed during the term at which the exceptions to the report of the referee were overruled. On the first hearing before the court, the court in its interlocutory decree reserved all questions involved in the suit until after the report of the referee should come in and until the final hearing; and authorized either party to introduce before the referee any evidence bearing upon the title and right to redeem. The second bill was filed during the term at which the motion for rehearing and new trial were overruled. The court on the final hearing used and considered all the evidence theretofore taken both before it and the referee. State v. Hurlstone, 92 Mo. 332. This was a strict compliance with section 3636, Revised Statutes, 1879, before its amendment. See Jones v. Evans, 80 Mo. 565; Bank v. Eldred, 143 U.S. 298. (2) The petition showed that the Barr note, on which the action was based, was seventeen years, five months and twenty-five days past due at the time the petition was filed and does not allege any payment on it. This alone constituted such laches as to deprive the plaintiffs of any right of action. Ferguson v. Soden, 19 S.W. 727; Burgess v. Railroad, 99 Mo. 508; Lanitz v. King, 93 Mo. 519; Schradski v. Albright, 93 Mo. 48; Ward v. Brown, 87 Mo. 473; Stamper v. Roberts, 90 Mo. 683; Kline v. Vogel, 90 Mo. 248; Kelly v. Hurt, 74 Mo. 567; Reel v. Ewing, 71 Mo. 17; State v. West, 68 Mo. 229; Stevenson v. Saline County, 65 Mo. 425; Bliss v. Pritchard, 67 Mo. 181; Evans v. Snyder, 64 Mo. 516; Collins v. Rogers, 63 Mo. 515; Landrum v. Bank, 63 Mo. 48; Moreman v. Talbot, 55 Mo. 392; Smith v. Washington, 11 Mo.App. 519; affirmed, 88 Mo. 475. (3) The Brault-Siemers agreement, although not signed by Brault, was accepted by her, and was as binding on her as if she had signed it. Ferry Co. v. Railroad, 73 Mo. 389; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685; Keith v. Keith, 80 Mo. 125. It was assigned, and the assignment acknowledged by her before a notary, and this showed that she intended, as provided therein, that the property named in it should be charged with the payment of the claims named in it, with interest as provided, and made it an equitable mortgage without her signature. Martin v. Nixon, 92 Mo. 26; Blackburn v. Tweedie, 60 Mo. 505; McQuay v. Peay, 58 Mo. 56; McClurg v. Philips, 49 Mo. 315; Davis v. Fay, 2 Mo. 161. It was a document affecting realty, and although not under seal was properly proved, acknowledged and recorded. Jasper County v. Tavis, 76 Mo. 17; McClurg v. Philips, 57 Mo. 214; Digman v. McCollum, 47 Mo. 372. It established appellant's claims recited in it, without other evidence. Fitzgerald v. Barker, 85 Mo. 13. (4) Bunch acted for himself and Brault and conducted this whole matter, even to advertising his property for sale, was present at the trustee's sale, kept silent for thirteen years, and then took the property for sale on commission for the parties holding under said sale. After that great length of time, without complaint, the irregularity, if any, in the advertisement, was both waived and cured by time and the trustee's deed gave a legal title to Siemers. Tatum v. Holliday, 59 Mo. 422; Meier v. Meier, 105 Mo. 429. Plaintiffs claiming under a quitclaim deed from Brault and Bunch are in no better position than they would be. Schradski v. Albright, 93 Mo. 42. In addition, this conduct is an estoppel against them and plaintiffs sufficient to pass title. Baker v. Humphrey, 101 U.S. 494; Blackmore v. Tabor, 22 Ind. 466. But assuming that the trustee's sale was and is void, a court of equity should not declare a forfeiture of the lien secured by the contract or deeds of trust, especially in the absence of any such provision in the contract. A mortgagee has a right to recover for improvements, which in this case, according to the testimony for appellants, amount to $ 3,500 permanent improvements for quarry purposes, the only use to which the premises were reasonably adapted, none of which was allowed, but defendants heavily mulcted for having made them. Martin v. Ratcliff, 101 Mo. 254; Turner v. Johnson, 95 Mo. 431; Ely v. Turpin, 75 Mo. 83; Neilson v. Sass, 75 Mo. 386; Rowell v. Jewett, 73 Maine, 365; Jones v. Savings Institution, 67 Mo. 109; Bollinger v. Chouteau, 20 Mo. 89; McSorley v. Larissa, 100 Mass. 270; Montgomery v. Chadwick, 7 Iowa, 114; Gillis v. Martin, 2 Dev. Eq. (N. C.) 470; Morgan v. Walbridge, 56 Vt. 405; Givens v. McCalmont, 4 Watts. 460; Harper's Appeal, 64 Pa. St. 315; 95 Ill. 287; Hadley v. Stewart, 65 Wis. 481; Sheperd v. Jones, 21 Ch. D. 469.

E. W. Pattison for respondents.

(1) This court will not consider any exceptions saved at the October term, 1887, nor at the February term, 1888, no bill of exceptions having been filed at either of those terms, and no extension of time having been granted. R. S., sec. 2168. Jones v. Evans, 80 Mo. 565. (2) Neither tender nor offer to redeem before filing the bill was necessary. Kline v. Vogel, 90 Mo. 239; Horn v. Bank, 125 Ind. 381; Casserly v. Wetherbee, 119 N.Y. 522; Sanford v. Flint, 24 Mich. 26; Spann v. Sterns, 18 Tex. 556; Breaux v. Negrotto, 43 La. Ann. 426; Cain v. Gimon, 36 Ala. 168. The bill contains an express offer to pay any amount which might be found to be due the mortgagee. (3) Respondents were guilty of no laches. Neither the mortgagee nor any one claiming under him, took possession until 1882. In three years thereafter Kennedy commenced proceedings to recover the possession, and has prosecuted them with the utmost diligence to the present time. (4) Both parties claim through Bunch and Mrs. Brault. Respondents, plaintiffs below, have shown that they have the title of Bunch and Mrs. Brault, and hence are entitled to redeem. (5) There has been no waiver of the invalidity of the trustee's sale. Siemers does not claim to have taken possession under his purchase at that sale. No possession was taken by him until 1882, and the court has found that such possession was taken under the mortgage. The entire record shows that this finding was fully warranted. (6) Respondents are the owners of the entire premises in fee simple. But even if it had been shown that they did not hold the entire title to the premises, they would nevertheless be entitled to redeem. See cases cited in note to Horn v. Bank, 21 Am. St. Rep. 245. (7) The purchasers from Siemers could not acquire any greater rights than Siemers had. They could certainly acquire no more than the right to be paid the mortgage debt and the amount of the incumbrances which Siemers had extinguished. Wells v. Lincoln County, 80 Mo. 424, and cases there cited. (8) The mortgagee in possession is liable to account for rents and profits, and for waste committed or suffered. When he commits the waste, after notice of the rights of the owner of the equity of redemption, he is liable as a trespasser. (9) The appellants, as mortgagees in possession, are not entitled to an allowance for improvements, even could the holes which they have made in the lot be properly called improvements. Horn v. Bank, 125 Ind. 381; Moore v. Cable, 1 Johns. Ch. 385; Givens v. McCalmont, 4 Watts. 460. They are not entitled to recover for losses, even if they have sustained any, and can not engage in speculative enterprises. Mariott v. Co., 3 DeG., F. & J. 187. (10) The mortgagee in possession has no right to open new mines or quarries on the premises. See cases cited in 15 Am. and Eng. Encyclopedia of Law, p. 592. Even the cases which concede such right to the mortgagee, hold that if he opens a new mine or quarry he does it at his own risk and peril. Bainbridge on Mines, 87, 88. Mac-Swinney on Mines, 84-86. In Thorneycroft v. Crocket, 16 Sim. 445, the mortgagee who had opened a mine on the mortgaged premises, was charged with the receipts but disallowed the expenses. (11) The damages awarded by the referee were less than the respondents are entitled to, rather than more. The damages to which we are entitled are at least the value of the rock in the ground, together with the damage to the premises caused by the quarrying, such as the cost of refilling, etc. Forsyth v. Wells, 41 Pa. St. 291; Iron Co. v. Iron Works, 102 Mass. 86; Maye v. Tappan, 23 Cal. 306; Waters v. Stevenson, 13 Nev. 157; Foote v. Merrill, 54 N.H. 490; Hilton v. Woods, L. R. 4 Eq. Cas. 432; Wood v. Morewood, 3 Q. B. 440; In re Co., 15 Eq. Cas. L. R. 46; 15 Am. and Eng. Encyclopedia of Law, p. 601. (12) The discretion of the court in the matter of costs will not be reviewed by this court. R. S., secs. 2922, 2923, 2932; Turner v. Johnson, 95 Mo. 452.

Macfarlane, J. Barclay, J., concurs in the result only.

OPINION

In Banc

Macfarlane J.

On the twelfth day of December, 1868, Virginia Brault and Harrison K. Bunch being the owners of lot 22 of D. W. Graham's subdivision of the Sulphur Spring tract, situate in the county of St. Louis, now inside the city limits, with two other lots in said city, by their deed of trust, conveyed the same to William D. Butler, as trustee, with power of sale, to secure to John Barr a note for three hundred dollars dated on said day and payable six months after date. This is a suit in equity commenced in May, 1887, by plaintiffs, who claim to be the owners of the equity of redemption, to redeem said land from said deed of trust, and to compel the cestui que trust and his assigns, who were in possession, to account for rents...