Krug v. Bremer

• Decision Date: 14 March 1927
• Docket Number: 25960
• Citation: 292 S.W. 702,316 Mo. 891
• Parties: Elizabeth Krug, Appellant, v. August F. Bremer, John M. Beyer and Otis Mosier, Trustees, and Anna Bremer, Emma Beyer and Springfield Title & Mortgage Company
• Court: Missouri Supreme Court

292 S.W. 702

316 Mo. 891

Elizabeth Krug, Appellant, v. August F. Bremer, John M. Beyer and Otis Mosier, Trustees, and Anna Bremer, Emma Beyer and Springfield Title & Mortgage Company

No. 25960

Supreme Court of Missouri

March 14, 1927

Motion for rehearing overruled April 9, 1927.

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Reversed and remanded (with directions).

H H. Bloss for appellant.

(1) Where a deed has expressed words of limitations, such as are contained in the deed to the children of Henry and Elizabeth Krug, a life estate is reserved in the grantors or the survivor. Cross v. Hock, 149 Mo. 325; Lewis v Pitman, 101 Mo. 281; McMillan v. Farrow, 141 Mo. 55; Schoor v. Carter, 120 Mo. 409; Munro v. Collins, 95 Mo. 33; Harbison v. James, 90 Mo. 411; Bean v. Kenmuir, 86 Mo. 666; Cook v. Higgins, 235 S.W. 807. (2) The language of the deeds is unambiguous. Therefore the court had no right to receive evidence intended to impeach the plain terms of the instrument. The instrument itself under such circumstances is conclusive as to what the contract is. Jennings v. Brizeadine, 44 Mo. 332; Harding v. Wright, 119 Mo. 8; Jones v. Shepley, 90 Mo. 307; Hubbard v. Goin, 137 F. 832. (3) In all cases where the trustee has been guilty of negligence, oppression, misconduct or fraud, resulting in a sale of the incumbered property below its value, such sale will on timely application to a court of equity be set aside. Hewitt v. Price, 204 Mo. 31, 102 S.W. 647; Givens v. McCray, 196 Mo. 306, 93 S.W. 374; Adams v. Carpenter, 187 Mo. 613, 86 S.W. 445. The trustee is the agent of both debtor and creditor and it is his duty to sell in such manner and at such time as will enable him to realize the highest possible price for the encumbered property. Tatum v. Holliday, 59 Mo. 422; Sumrall v. Chaffin, 48 Mo. 402: Green v. Building Co., 196 Mo. 358; Axman v. Smith, 156 Mo. 286; Hanson v. Neal, 215 Mo. 556. In this case, the bid of Dayton on behalf of the widow, being $ 4600, would have netted a much greater return for the encumbered property, than the sum of $ 2025, and had this trustee given the same privileges to have closed up the transaction that he gave to the buyers with whom he evidently had an arrangement to loan this money through his company, the deal could have been consummated. Even at the third sale of this property when he forbid William Krug from bidding at all, the property would have gone as high as $ 6000 at that time. Krug had been authorized by Hal Johnson to bid that, and he would take care of the bid to that extent.

D. S. Mayhew and Ben M. Neal for respondents.

(1) If land is sold under a deed of trust for cash and the debtor bids the highest price therefor, which he is unable to pay, it is not error to sell to the next highest bidder. And generally when the successful bidder withdraws his offer, or is irresponsible, or refuses to pay his bid, while other bidders are still present the sale may properly be reopened, especially if some other person promises a higher bid. So if the mortgagee upon the failure of one bidder to comply with his bid immediately put up the premises for sale again in the mortgagor's presence, who does not object, and sells it for a lesser sum than was previously bid, this is no ground for avoiding the sale. 19 R. C. L. sec. 430, 438. (2) The essential inquiry is as to the fair conduct of the trustee in making the sale. Everything considered the case is one in which the conclusion of the trial judge as to the question of fairness in making the sale ought to be accepted, since he saw and heard the witnesses and was better able to determine what the fact was in that respect. Borth v. Proctor, 219 S.W. 74. (3) Before a deed becomes operative it is necessary that it be actually delivered and actually accepted. Schooler v. Schooler, 167 S.W. 445. (4) Where there is a mutual agreement and by mistake of the scrivener the agreement is not carried out, the deed will be reformed. Whittaker v. Lewis, 174 S.W. 370; Stephens v. Stephens, 183 S.W. 573. (5) Where the question of intent is under consideration, and it is evident from the entire context and circumstances of the deed that through inadvertence the word "or" was used instead of the word "and," the word "or" will be construed as "and," and vice versa. Willis v. Robinson, 237 S.W. 1033. (6) A reservation of a life estate by a grantor for the life of another dies with the grantor and passes to his estate after his death. Lemon v. Lemon, 201 S.W. 106; Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73; Murphy v. Lee, 144 Mass. 371; Bridger v. Pierson, 45 N.Y. 601; Stockwell v. Couillard, 129 Mass. 231; Stone v. Stone, 141 Iowa 438, 20 L. R. A. (N. S.) 221.

Davis, C. Higbee, C., concurs.

OPINION

DAVIS

This is a suit in equity to cancel a trustee's deed, executed in pursuance to a sale under a second deed of trust. The trial court found the issues and rendered judgment in favor of defendants, plaintiff appealing therefrom.

The petition alleges in substance that plaintiff is the widow of G. Henry Krug, who died November 13, 1922, seized in fee simple of a certain one hundred and seventy acres of land in Lawrence County. That said Krug and plaintiff on March 1, 1921, executed a second deed of trust on said land to secure five notes due in one to five years, respectively, aggregating $ 150, of which trust deed one Groves was trustee, with the right of substituting another, and that he substituted defendant Otis Mosier as such trustee, who conducted the foreclosure sale and executed the trustee's deed. That said sale was had because of default in payment of a thirty-day note due March 1, 1923, and that at said sale defendants Bremer and Beyer bid in and purchased the land for $ 2025; the petition then alleges fraud, unfairness and oppression on the part of the trustee in his conduct of the sale, and prays the cancellation of the deed executed and delivered by the substituted trustee to Bremer and Beyer, and for other and further relief.

The answer of the defendants in substance admits the execution of the deed of trust foreclosed, the delinquent interest, and the sale on September 15, 1923, by the trustee to Bremer and Beyer, followed by a general denial. The answer further prays affirmative relief relative to the reformation and correction of warranty deeds executed by G. Henry Krug and plaintiff to Anna Bremer and Emma Beyer, their daughters, because of a mistake of the scrivener.

The evidence develops that G. Henry Krug had been for many years before his death the fee owner of the one hundred and seventy acres of land referred to. On March 21, 1921, said Krug and plaintiff executed a deed of trust covering said land to secure five notes of thirty dollars each, due in one to five years from date, respectively, which recited that it was subject to a prior mortgage dated December 28, 1915, for $ 4000, now reduced to $ 3000. On December 9, 1922, four days before his death, said Krug, with plaintiff joining therein, executed a warranty deed to each of his six children, respectively, conveying to each a certain portion of the one hundred and seventy acre farm, the respective deeds reciting a conveyance to each child of separate portions and each deed containing the provision following: "This deed is made subject to the life estate of Henry Krug and Elizabeth Krug or the survivor of them and upon condition that the said [specific child] shall pay to the said Henry Krug and in case if his death to Elizabeth Krug the sum of $ 100 per year during the natural life of the survivor of them. Grantee assumes a mortgage on the above land which he assumes and agrees to pay in the sum of $ 550." The deed to Anna Bremer was delivered to her immediately after its execution by the grantor and was recorded. The respective deeds to the other five children were retained by the grantor, found in his pocket after his demise and mailed to the respective grantees by some one unknown. Neither Anna Bremer nor the other children paid a proportionate part of the mortgage in the sum of $ 550, nor paid their mother the sum of $ 100 per annum as provided by the respective deeds.

Three separate cryings of the foreclosure sale took place on September 15, 1923. At the first crying plaintiff through her agent Dayton bid $ 4600, which was the final bid and was accepted. Plaintiff, through Dayton, had made arrangements with one Johnson the morning of the sale, for the necessary money. However, after the mortgage had been executed by plaintiff in favor of Johnson or his principal, and the trustee's deed executed by the trustee, a controversy arose between Johnson and the trustee as to whether the foreclosure sale was subject to the $ 3000 first mortgage the trustee contending that it was so subject and Johnson maintaining that the trustee had told him earlier in the day that it was not, but that the first mortgage debt was to be paid out of the proceeds of the sale. Johnson testified that the trustee told him that morning that $ 3500 would take care of the mortgages and that $ 1000 would cover the probate costs and the debts of the estate. Johnson refused to take a second mortgage and the trustee said that he would give them fifteen minutes to raise the money and if it was not raised, he would sell the place again; that Johnson had $ 4600 ready to pay, provided the understanding with the trustee had been carried out. At the second crying of the sale Dayton, representing plaintiff, bid $ 8030, but whether this was subject to the first mortgage or not the evidence fails to show. Dayton testified in substance that he understood the property was not being sold subject to the first mortgage, receiving this information from the trustee. The first bid he made was $ 4600. The...