Long v. Zirkle, No. 17301
| Decision Date | 28 June 1991 |
| Docket Number | No. 17301 |
| Citation | 811 S.W.2d 840 |
| Parties | Stephen LONG, Ellene Kenney, Mehran Fathi, Marcia Fathi, Pat Long, Iola Jones, Sherri Jones, and Richard O'Connor, Plaintiffs-Respondents, v. Frankie J. ZIRKLE, Berl W. Zirkle, Robert M. Sweere, Defendants-Appellants, and Tried Stone Church of Republic, Incorporated, A Missouri Not-For-Profit Corporation, Defendant. |
| Court | Missouri Court of Appeals |
Larry K. Bratvold, Springfield, for plaintiffs-respondents.
Robert M. Sweere, Springfield, for defendants-appellants.
"If a house be divided against itself, that house cannot stand." Mark 3:25 (King James). Although divided and tottering, the house of worship aptly known as Tried Stone Church has not yet fallen.
Appellants Zirkle hold a note, the payment of which is secured by a deed of trust on the church property. Defendant-Appellant Sweere is the successor trustee under the deed of trust. At the Zirkles' request he started proceedings to foreclose the property.
Plaintiffs are members of Tried Stone Church of Republic, Inc., a Missouri Not-For-Profit Corporation formed under Chapter 355. 1 It holds title to the property. At the request of plaintiffs, the trial court permanently enjoined the foreclosure on the basis defendants sought to foreclose. Defendants Zirkle and Sweere appeal.
Under Rule 73.01, review of this non-jury trial is to sustain the trial court unless there is no substantial evidence to support its order, unless its order is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. M.D. and Assoc. v. Sears, Roebuck & Co., 749 S.W.2d 454, 455 (Mo.App.1988).
Due regard is given to the opportunity of the trial judge to determine the credibility of witnesses. Rule 73.01(c)(2). The trial judge can disbelieve testimony, even when uncontradicted. Robinson v. Estate of Robinson, 768 S.W.2d 676, 677 (Mo.App.1989).
Appellants present two points relied on. The first point states:
The trial court erred and misapplied the law in holding that the purported note payment made with a money order showing W.J. Kenney as the remitter, mailed in an envelope with a return address showing W.J. Kenney as the mailor, with a return receipt addressed to W.J. Kenney was not payment by a stranger and having so found in thereafter enjoining appellants' scheduled foreclosure of the real estate securing payment of said note because the purported note payment was an attempted payment by a stranger to the instrument which appellants were not required to accept under Section § 400.3-603(2) R.S.MO. in that W.J. Kenney was neither a party to the instrument nor did he have any legal obligation to pay it nor could any of his property be subjected to its satisfaction and in that assuming the persons providing the funds for the purported payment were members of the corporate maker of the note the purported payment was still made by a stranger since the purported payment was not made by persons authorized by said corporation to make said payment.
W.J. Kenney is the husband of Plaintiff Ellene Kinney. He is not a "member" of the church. She is secretary of the church corporation. Defendant Frankie Zirkle is treasurer of the corporation, a member of it and one of its incorporators. The Zirkles acquired the note January 8, 1990. Mrs. Zirkle announced at the September 2, 1990 church board meeting that she was not going to make payment of the church's bills until the end of the month. The next payment on the note was due September 25, 1990.
After the church services on September 21, 1990, respondent Stephen Long, pastor of the church, took moneys from concerned members of the church to pay the mortgage payment. He gave the money to Mrs. Kenney. Payment on the note was attempted through a bank money order she purchased, but showing as the remitter It was sent to defendant Berl Zirkle certified mail in an envelope bearing Mr. Kenney's name and address in the upper left hand corner. It was received by Mr. Zirkle on September 25, 1990.
It had been the practice for defendant Frankie Zirkle, as treasurer of the church to make the monthly payments on the note to her husband Berl. Berl Zirkle did not cash the money order, but placed it in a vehicle owned by the Kenneys parked in front of the Kenneys' house. Three days later, on September 28, 1990, the Zirkles gave "Notice of Acceleration" stating that for default in the payment of an installment when due, they were declaring all remaining installments payable. They then gave notice of a trustee's sale of the property to be held on November 9, 1990.
Appellants rely on § 400.3-603(2), RSMo 1986, and cases defining "strangers". That section states:
One who has an interest in property is not a stranger and can make a valid tender to prevent a foreclosure of an encumbrance on property. Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169, 170 (1913); Sever v. Yetter, 128 N.J.Eq. 367, 16 A.2d 461, 462 (1940); 9 Thompson on Real Property § 4810, p. 646 (1958); 55 Am.Jur.2d Mortgages § 432, p. 461 (1971); 59 C.J.S. Mortgages § 446, p. 692 (1949).
Berl Zirkle had met W.J. Kenney and knew he was the husband of Plaintiff Ellene Kenney. Common sense tells us, and apparently the trial court, that the Zirkles knew the payment was from Mrs. Kenney and the other plaintiffs, or those aligned with them. It was made by them as members of the church, or on behalf of the church by Mrs. Kenney as an officer. Members of a not-for-profit corporation are allowed under § 355.100, RSMo 1986. As members, plaintiffs have an interest in the church continuing. Preservation of its property would necessarily affect its continuance.
In addition, a corporation must necessarily act through its agents. The treasurer of the corporation had a conflict of interest and announced she was not going to timely make this and other payments. As an officer of the corporation Mrs. Kenney could make that payment on its behalf. A tender may be made by an authorized agent as by the debtor itself. Forderer v. Schmidt, 154 F. 475, 477 (9th Cir.1907); 55 Am.Jur.2d Mortgages § 432, p. 461 (1971); 74 Am.Jur.2d Tender § 12, p. 554 (1974); 59 C.J.S. Mortgages § 446, 692 (1949). Point I has no merit.
For their remaining point, appellants state:
The trial court erred and misapplied the law in finding...
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