Leone v. Bear
| Decision Date | 10 September 1951 |
| Docket Number | No. 42070,No. 2,42070,2 |
| Citation | 362 Mo. 464,241 S.W.2d 1008 |
| Parties | LEONE v. BEAR et al |
| Court | Missouri Supreme Court |
Joseph Boxerman, Joseph Nessenfeld, St. Louis, for appellant.
Frank W. Jenny, James A. Cole, Union, for respondents.
BOHLING, Commissioner.
Louis Leone, offering to do equity, sued Joseph J. Sullivan, Trustee under the deed of trust hereinafter mentioned, and John W. Bear and Edna H. Bear, husband and wife, purchasers at said trustee's sale, in equity to set aside the sale under the deed of trust and to cancel the trustee's deed executed pursuant to said sale. Defendants Bear, in addition to denying Leone's claim, asked that the fee simple title to the real estate be decreed in them. Judgment was for the defendants, dismissing the petition with prejudice. Leone appeals and charges error in the chancellor's findings that he was not a part owner of the real estate subject to said deed of trust; that no proper offer to redeem said real estate had been made; and that a deed from a mortgagor to him within twenty days after the sale was ineffectual to vest any right in him to attack said sale on equitable grounds.
Clyde Roberts had offered to purchase a farm in Warren county, Missouri, owned by the Bears; and in July, 1948, he came to the Bear home in Kirkwood, Missouri, bringing Leone with him. An earnest money contract for the purchase of the farm was executed by Bear and Roberts. Leone signed this contract as a witness. the sale price was $20,000; with $6,000 to be paid in cash ($1,000 being paid upon the execution of the contract), and the Bears were to take back a deed of trust on the land securing the $14,000 balance.
Leone gave his check, dated July 17, 1948, for $1,000 payable to Bear, who endorsed it as evidencing the earnest money payment.
Leone had a real estate office in St. Louis. The transaction was completed there. The Bears executed their deed to the Roberts. Clyde Roberts and Norine Roberts, his wife, executed their notes and their purchase money deed of trust securing the $14,000, principal amount, balance due. There were twenty notes, bearing interest after maturity, dated August 15, 1948, payable to the Bears serially, one each six months, the first being for $1,050 ($700 principal plus interest), each note being for $17.50 less than the note preceeding it in order of maturity. Leone gave his checks, payable to Bear, for $4,955, representing the $5,000 cash payment after adjustments.
The notes had no acceleration clause, and did not refer to the deed of trust. The deed of trust, however, provided that upon default in the payment of any note or interest, or failure to pay any tax, all of the notes became due.
Leone testified that he told Bear, at the time the earnest money contract was executed, Roberts and he were buying the farm, he was advancing the money and was responsible for the payment of the notes, and Bear should let him know where to pay them. On cross examination he stated he did not tell Bear he was claiming an interest in or purchasing a part of the farm when the contract was signed. He also testified that when the transaction was consummated he told Mr. and Mrs. Bear he was buying part of the land, Roberts and he were purchasing the farm as partners, but the title was being taken in the name of Clyde Roberts; and that he, Leone, was to advance the money and pay the notes when they became due.
Bear denied that Leone ever told him he was claiming any interest in the farm or that he was responsible for and would pay the notes, or that he should let Leone know where to pay the notes, and that the first he knew Leone was claiming an interest in the farm was when he received notice of this suit.
Roberts lived at Wright City. Bear informed Roberts he would leave the $1,050 note due February 15, 1948, at the Farmers and Merchants Bank at Wright City, and make it convenient for Roberts to pay it. Roberts informed Leone, and Leone went to the bank, gave his check for $1,050, payable to John and Edna Bear, and received the note. The check is endorsed by the Bank as credited to the payee's account.
Thereafter Roberts and Leone had trouble and engaged in litigation. The Bears had moved to Arkansas. Bear sent the $1,032.50 note, due August 15, 1949, to the bank for collection. Bear received a letter from Roberts to the effect that Leone had failed to pay an obligation due Roberts on property at Creve Coeur, Mo., and Roberts would be unable to make payment. The $1,032.50 note was not paid.
In the latter part of August, 1949, Bear, while in St. Louis, called at Leone's office. The evidence is conflicting as to what occurred.
Leone testified that he did not know where to get in touch with Bear; that Bear came to see him about the $1,032.50 note, stating he was going to foreclose if it were not paid; that he offered to pay the note; that Bear said he was going to ask the full amount of the indebtedness, demanded the full amount for the farm; that Bear said he would refinance the loan and would get in touch with him later, but never did.
Bear testified that he went to Leone's office after receipt of Roberts' letter to find out the status between Roberts and Leone, 'which had been a mystery, more or less'; that all they discussed was the situation between Leone and Roberts; that Leone never offered to pay the $1,032.50 note; that he told Leone all the notes were due but did not say their payment was the only payment he would consider; and that Leone made some suggestion about refinancing the farm but he did not promise Leone he would refinance it or anything, telling Leone he was dealing with Roberts.
The Bears held all the notes and caused the land to be advertised under the deed of trust for sale on October 8, 1948.
Bear and Joseph J. Sullivan, Bear's brother-in-law and the trustee in the deed of trust, were in Warrenton, Missouri, for the foreclosure sale.
Leone, Roberts and Gus Spinaio, a relator who had a desk in Leone's office, met Bear and Sullivan at the Courthouse a short time before noon. Again, the testimony conflicts.
Leone testified he told Bear he came to see about the foreclosure, stating ; that Bear told him 'he was going to ask for the full amount and not to even talk to him, that he wasn't going to take any money.' Leone also testified he had $1,500 cash with him; that he knew the note was for $1,032.50, but did not know what the advertising expense and interest amounted to; that he exhibited his money to Bear and told him he would pay the amount due; that Bear mentioned the taxes on the land and he also offered to pay them; and that Bear told him to pay the balance due on the purchase price or not to talk to him.
Gus Spinaio corroborated Leone as to what occurred between Leone and Bear at the courthouse with respect to Leone wanting to pay the note, interest, costs, and taxes, and offering the money to Bear, and Bear stating he did not have to take it because the loan was due and, having gone that far, he was going through with the foreclosure. He also testified that Leone and Bear 'got warmed up,' especially Leone, and he, Spinaio, told Bear that if a mortgagor wanted to pay all delinquencies and expenses, 'it is right to call the foreclosure off'; that Bear said his deed of trust provided that 'when there was a delinquency in one note, the whole thing came due' and he would be a fool to take the amount of the loan when he could get a lot more for the farm; and that Bear wanted Leone to pay 'the full amount of the loan and everything.'
Bear testified that Leone did not on October 8, 1949, or at any other time offer to pay the $1,032.50 note, costs and taxes; that Leone did not say he came to talk about the foreclosure and wanted to pay the $1,032.50 note, expenses and interest, and he, Bear, did not tell Leone not to talk to him or that he would not 'take that money'; that no money was produced at all; and that he never told Spinaio he, Bear, would be a fool to take the money, he could get a lot more for the farm.
Bear testified:
Asked on cross-examination whether he testified in chief that, when Leone asked him what amount he had to pay to stop the foreclosure, he explained all the notes and delinquent taxes were due under the deed of trust and he told Leone the amount he would have to pay, Bear answered:
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