Knollenberg v. Nixon
| Decision Date | 26 January 1903 |
| Citation | 72 S.W. 41,171 Mo. 445 |
| Parties | KNOLLENBERG, Appellant, v. NIXON et al |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
J. J Henderson and E. B. Kellerman for appellant.
(1) Tender of the debt and interest secured by deed of trust though made after default, releases the mortgage lien. Farmers' Fire and Loan Co. v. Edward, 26 Wend 541; Kortright v. Cady, 21 N.Y. 343; Thornton v. Bank, 71 Mo. 221; State ex rel. v. Ross, 136 Mo. 259; Phillips v. Bailey, 82 Mo. 639; 4 Kent's Com. (10 Ed.), 228; McClung v. Trust Co., 137 Mo. 106. (2) Plaintiff was not bound to bring the money into court. The proposition would doubtless be a correct one in an action at law to recover a debt, but it is not applicable in a case of this kind, where no recovery of money is asked on either side, but equitable relief. Whelan v. Reilly, 61 Mo. 565; Quinn v. Britain, 1 Hoff. Ch. 353; Bishop of Winchester v. Paine 2 Vesey 194.
J. P. Nixon for respondents.
(1) Plaintiff Knollenberg having accepted a deed to the land in controversy from his attorney, Henderson, in which it is recited that "he assumes and agrees to pay J. P. Nixon two hundred dollars and one year's interest on the mortgage" on said land, subjected himself to a liability to the holder thereof for said amount, which might be enforced in a personal action. Saunders v. McClintock, 46 Mo.App. 216; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 85 Mo. 13. (2) "When a debt is secured by a deed of trust a tender after maturity of the debt so secured does not extinguish the debt or mortgage lien nor operate to defeat a sale and a trustee's deed thereunder." Secs. 1564 and 1565, R. S. 1899; Landis v. Saxton, 89 Mo. 375; McGuire v. Brockman, 58 Mo.App. 307; Hudson v. Glencoe Gravel Co., 140 Mo. 103; Rupel v. Savings and Building Association, 158 Mo. 613; Kline v. Vogel, 90 Mo. 245.
OPINIONIn Banc
-- On April 8, 1892, one Clara B. Hoagland was the owner of the northwest quarter of the northwest quarter of section eleven, in township thirty-three, range sixteen, in Laclede county, at which time she was indebted to one Augustus Craemer in the sum of two hundred dollars, evidenced by her three promissory notes of that date, one for the sum of fifty dollars, due January 1, 1893, one for the sum of fifty dollars, due August 1, 1893, and one for one hundred dollars, due January 1, 1894, all bearing interest at the rate of eight per cent per annum from date. And for the purpose of securing the payment of said notes, Clara B. Hoagland, her husband, S. G. Hoagland, joining with her, on April 8, 1892, made and executed to one M. F. Kellerman, as trustee for the use of said Craemer, a deed of trust on said land to secure their payment.
On September 7, 1894, Clara B. Hoagland and her husband conveyed said land to M. M. Phillips, subject to said deed of trust to Kellerman, and for the balance of the purchase money, to-wit, sixty dollars, M. M. Phillips on the same day made, executed and delivered to S. G. Hoagland his promissory note, due one year after date with interest from maturity at eight per cent per annum, and, to secure the payment thereof, made, executed and delivered to one W. I. Wallace, as trustee for the use of said Hoagland, a deed of trust, dated September 14, 1894, on said land, which said deed of trust was duly recorded in said county. It specified that it was subject to the deed of trust made to Kellerman.
Said M. M. Phillips having failed to pay the said last mentioned note when the same became due, and, the conditions in said deed being broken, at the request of the legal holder and owner of said note, said W. I. Wallace, trustee, advertised said land for sale under said deed of trust according to the terms thereof, and on October 25, 1895, sold said land, and John J. Henderson, being the highest and best bidder, became the purchaser thereof and received a deed therefor from said trustee, which was duly recorded in the recorder's office of said county.
In the meantime, the defendant, James P. Nixon, had, by transfer, become the holder and owner of said three notes executed by said Clara B. Hoagland to said Augustus Craemer, and the defendant, Harvey Bowman, to-wit, on the 27th day of February, 1897, had purchased of A. M. Phillips, widow of M. M. Phillips, her equity rights in said land, receiving a quitclaim deed therefor, in which it is provided: "This deed is made subject to a deed of trust of two hundred dollars which grantee assumes."
On the 20th day of December, 1898, said John J. Henderson and wife sold and conveyed said land to the plaintiff, Frederick W. Knollenberg, by deed, subject to the deed of trust from Clara B. Hoagland to Augustus Craemer for $ 200, in which said deed it is recited that "the party of the second part [Knollenberg] on the accepting this deed, agrees to assume the payment of a mortgage to the amount of two hundred dollars in favor of J. P. Nixon and one year's interest on same."
Payments on said notes so held by respondent Nixon, as assignee, had been made from time to time, as follows:
By Clara B. Hoagland, the interest of said notes up to September 7, 1894; by M. M. Phillips, $ 10 November 25, 1895; $ 15 December 21, 1895; $ 10 September 5, 1896; and by the defendant Harvey Bowman, the sum of $ 100.
After plaintiff became the owner of said land, he being a resident of Quincy, Illinois, he addressed several letters to defendant Nixon, with notice to "return if not called for" on the back thereof, requesting him to furnish him the amount of the principal and interest due on said notes, as he desired to pay them off and clear up the title to said land. To these inquiries Nixon made no reply. The evidence shows that shortly after J. J. Henderson became the purchaser of said land he addressed similar inquiries to said Nixon, informing him of his desire to pay off said debt and interest, and received no reply thereto. Afterwards, on the -- day of February, Nixon, under an arrangement with said Bowman, knowing that both this plaintiff as well as said Henderson were ready to pay off his incumbrance on said land, without their knowing anything about it, advertised it for sale, under the Hoagland deed of trust, but advertised it to be sold by E. B. Kellerman instead of M. F. Kellerman.
On the day the land was so advertised to be sold, the plaintiff by his agent, J. J. Henderson, appeared and after vainly applying to said Nixon for a statement of the amount of principal and interest due on said notes, and announcing his wish to pay off the same, he then and there made to said Nixon in the presence of said Bowman a tender, and counted out and offered to pay him in lawful money of the United States the sum of two hundred and eighty-six and twenty-five one-hundredths dollars, in full payment of said notes and interest, demanded the surrender of the same and the release and discharge of said deed of trust, but said Nixon refused to receive the same and to surrender said notes and cancel said deed of trust. It is not pretended by defendant but that the said sum of $ 286.25 was in excess of the amount of principal and interest then due on said notes, but the excuse offered by Nixon for not accepting same was that he wanted his friend Bowman to have the benefit of the $ 35 paid by Mrs. M. M. Phillips on the notes.
The prayer of the petition is that the liens of said deed of trust on said land be declared to be released, that in the meantime said defendants be restrained and enjoined from exposing said land to sale under said deed of trust, and for such other and further orders, judgments and decrees in the premises as the facts demand, and for general relief.
The trial resulted in a judgment in favor of defendants, from which plaintiff, after motion for new trial being presented and overruled, appeals.
As J. J. Henderson acquired all of the equity of M. M. Phillips in the land in controversy by purchase at the sale made by W. I. Wallace, trustee, on October 25, 1898, and had the legal title to said land subject to the deed of trust then held by defendant Nixon, when Knollenburg purchased from him, Henderson, it was subject to said deed of trust and he had the right to pay off the debt and interest to defendant Nixon who then held the notes secured by it and have the land released from the mortgage lien. There can be no question with respect to the right of Phillips to redeem the land at any time before its sale under the deed of trust, and as plaintiff acquired his interest in the land he acquired the same right that Phillips had. [Lapsley v. Howard, 119 Mo. 489, 24 S.W. 1020; Wolz v. Parker, 134 Mo. 458, 35 S.W. 1149.] And the evidence showed that plaintiff, before the institution of this suit, tendered to defendants Nixon and Bowman, who then held the notes as owners thereof, more than the amount that was due upon them and demanded the release of the deed of trust, but that they refused to accept the tender unless it was increased to a sufficient amount to include thirty-five dollars claimed to have been paid by Mrs. Phillips for the benefit of defendant Bowman. The evidence, however, to support this claim was very unsatisfactory, and was ignored by the court in estimating the amount due upon the notes at the time of the trial which was held by it to be sufficient to cover debt, interest and costs in advertising the land for sale.
The question then is with respect to the effect of the tender upon the lien of the deed of trust upon the land, that is, whether it released the lien or only stopped the running of interest on the notes secured by it.
In Thornton v. National Exchange Bank, 71 Mo. 221, it was held by this court in a per curiam opinion that the release...
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