Kline v. Vogel

• Decision Date: 15 November 1886
• Citation: 1 S.W. 733,90 Mo. 239
• Parties: KLINE and others v. VOGEL and others.
• Court: Missouri Supreme Court

1 S.W. 733

90 Mo. 239

KLINE and others v. VOGEL and others.

Supreme Court of Missouri.

November 15, 1886.

1. MORTGAGE — TRUST DEED — ACTION TO REDEEM FROM SALE UNDER TRUST DEED — TENDER NOT NECESSARY.

In an equitable proceeding, having for its object the setting aside of a sale under a trust deed, and for permission to redeem the property, and that the title be decreed to be in plaintiffs on payment by them of balance due under trust deed, it is not necessary that a tender of the money due be made in the petition, or that the money should be paid into court.

2. SAME — LACHES — PURCHASERS OF EQUITY OF REDEMPTION.

Where, three years after the sale of property under a trust deed, the purchasers of the equity of redemption brought suit in equity to set aside the sale, and for permission to redeem the property, after the purchaser had made repairs, effected improvements, and paid taxes, of all of which plaintiffs were cognizant, held, that they were guilty of laches, and that the petition was properly dismissed, notwithstanding the statute of limitations had not run between the times of sale and suit brought.

Appeal from St. Louis court of appeals.

E. W. Pattison, for appellants, Kline and others. Broadhead & Haeussler, for respondents, Vogel and others.

SHERWOOD, J.

This is an equitable proceeding, having for its object the setting aside of a sale made under a deed of trust, and for permission to redeem the property; for an accounting of rents and profits, and that the title be decreed to vest in plaintiffs on payment by them of the balance found to be due Vogel; and for general relief. Hesse was once owner of the property. In 1874 he incumbered the same by a deed of trust, to secure a loan of $5,000, having three years to run. Vogel became the owner and holder of the notes secured by the trust deed. Hesse sold the property subject to the deed of trust, and plaintiff Pattison, for himself and in trust for his co-plaintiffs, became the owner of the equity of redemption in said property in November, 1875. Hesse disappeared. In February, 1877, the debt matured, and Vogel notified plaintiffs that he required the same to be paid, but indulged them for over three months, in order for them to raise the money. They tried to do so, but failed; and told Vogel in June, 1877, that they could not pay, and agreed with Vogel to give a quitclaim deed, and have the note surrendered, in order to save foreclosure costs. Pattison, without arranging the matter prior to his departure, went east for the summer, remaining until September, and while there sent a quitclaim deed to his agent, which Vogel refused to receive, on account of the conditions accompanying it, but what those conditions were does not appear. Thereupon the plaintiffs were notified that the deed of trust would be foreclosed. The property was duly advertised for sale, and the same sold to Vogel, August 15, 1877, who was the highest bidder, at $500. Although Pattison was duly notified of the time of the sale by his agent, Logan, he did not return, nor authorize any one to pay attention to it.

The property consisted of adjoining tenement houses, seven in a row, covering 100 feet front, each house containing four rooms. Hammel, who made the sale, asked of those present if they would bid on the houses separately, and, if so, it would be put for sale in that way; but, as no one expressed a wish to bid on it in that way, it was offered for sale as a whole. The property at that time was in very bad condition, being out of "repair, and hardly fit to live in," the street in front of it not made, and its value was variously estimated at from $3,000 to $10,500. Vogel, after his purchase, put the houses in repair, and paid taxes and insurance on the property. Nearly three years after the sale this proceeding was begun.

Just after suit was brought, Vogel, on March 25, 1880, made offer to plaintiffs that if they would, by April 1st, reimburse him for what he had expended, and pay the note and interest, rendering them at the same time an account, he would grant them all they asked by their suit; but this offer was declined. He also renewed that offer when on the witness stand, but it was not accepted. The circuit court dismissed the petition, and the plaintiffs appealed to the St. Louis court of appeals, and, being unsuccessful, have appealed here.

1. I attach no importance to the fact that no tender of the money due was made in the petition. On a similar occasion we said: "But it is claimed that the plaintiff has lost the benefit of his tender by failing to pay the money into court. No objection on this score was made in the court below, and, if made, would hardly have been tenable. The proposition is doubtless a correct one, when applied to a formal plea of tender in an action at law brought to recover a debt, (2 Greenl. Ev. § 600;) but it is scarcely applicable to a case of this kind, where no recovery of money is asked on either side, but equitable relief, on the ground that the sale should not have occurred under the circumstances detailed in the petition and established by the evidence; and this, being a proceeding in equity, will be governed by rules and principles prevalent in those courts where relief of that character is prayed. Among those rules having application here is one to be presently mentioned. The true meaning of the rule, whose frequency of invocation would seemingly argue a better knowledge of its import, that `he who seeks equity must do equity,' is simply this: that where a complainant comes before a court of conscience, invoking its aid, such aid will not be granted except upon equitable terms. These terms will be imposed `as the price of the decree it gives him.' The rule `decides nothing in itself,' for you must first inquire what are the equities which the plaintiff must do in order to entitle him to the relief he seeks. Hanson v. Keating, 4 Hare, 1; Neesom v. Clarkson, Id. 97; Phillips v. Phillips, 50 Mo. 603; Erwin v. Blake, 8 Pet. 18; Story, Eq. Jur. § 64, and cases cited. Thus, where a husband comes into a court of equity for relief as to any property of his wife, which he claims jure mariti, he will be obliged to submit to the terms of the court, by making suitable provision for her, or else assistance will be denied him. So, also, if a borrower of money on usurious interest seeks the cancellation of the instrument which evidences the debt, equity refuses its aid, unless upon the condition that payment be made the lender of what is bona fide due him. The above are only a few out of a large number of examples which might be cited in illustration of the rule referred to, which finds its application, not in questions of pleading, nor by what the plaintiff offers to do therein, but in the form and frame of the orders and decrees, both interlocutory and final, whereby equitable terms are imposed as a condition precedent to equitable relief granted. In Quin v. Brittain, 1 Hoff Ch. 353, the objection was made that in the bill (which was substantially a bill to redeem) there was no...