Marsden v. Nipp

• Citation: 30 S.W.2d 77,325 Mo. 822
• Decision Date: 03 July 1930
• Docket Number: 28960
• Parties: R. A. Marsden v. Daniel Nipp and Mattie June Nipp, Appellants
• Court: Missouri Supreme Court

30 S.W.2d 77

325 Mo. 822

R. A. Marsden v. Daniel Nipp and Mattie June Nipp, Appellants

No. 28960

Supreme Court of Missouri

July 3, 1930

Appeal from Jefferson Circuit Court; Hon. John H. Reppy Special Judge.

Affirmed.

Max F. Ruler for appellants.

(1) It was error to allow plaintiff to reopen his case after the cause was submitted by both sides and final judgment rendered. Sec. 1521, R. S. 1919. The first judgment was final, when pronounced by the court. It was the determining act. State ex rel. v. Henderson, 164 Mo. 347. (2) There was further error when the court concluded a second determining act by the rendition of its second judgment without first making an order vacating or setting aside its first judgment. This second judgment was not for possession but merely for damages. This second judgment of the court was not responsive to the issues involved. Judgment entered in record, though erroneous, is presumed to be that actually rendered by the court. Calnane v. Calnane, 17 S.W.2d 566; Sec. 1830, R. S. 1919; Howell v. Sherwood, 242 Mo. 513; Lesan Adv. Co. v. Castleman, 165 Mo.App 575, 265 Mo. 345. The trial court having made a special finding of facts in its attempted second determining act could not legally enter its third judgment without first having vacated and set aside its two previous judgments. The third determining act was not supported by the evidence or the finding of facts under judgment No. 2. Said three judgments are erroneous of record. (3) It is respectfully contended that these seriatim judgments one, two and three, are inconsistent, conflicting and repugnant, one to the other, and are not responsive to the evidence nor the finding of facts; nor pertinent to any of the issues involved; and consequently void against the defendants. (4) The material evidence in this case failed to prove facts sufficient to constitute a cause of action against the defendants. In ejectment, plaintiff must rely on strength and preponderance of own title. Clark v. Fergerson, 20 S.W.2d 1013. Especially is this true as to any testimony that the original trustee refused to act, or of his inability to perform the duties and powers in deed of trust, or that said trustee had died without fully performing the trust. Either one of which was a condition precedent before the sheriff could legally act as substitute trustee. The holder of the note did not avail itself of the statutory provision (Sec. 13418, R. S. 1919), for the appointment of a successor trustee by applying to the circuit court of the county where the land sought to be foreclosed was situated; neither did it file a bill in equity in that court to cure the defective deed of trust, relating to the designated place of sale; but elected to take a short-cut and requested the sheriff to make the sale, in question, at DeSoto. Markel v. Peck, 144 Mo.App. 701; Kelsay v. Farmers & M. Bank, 166 Mo. 157. Foreclosure of a deed of trust without request of legal holder of notes is void. Magee v. Burch, 108 Mo. 336; Morrison v. Herrington, 120 Mo. 665; Dunham v. Hartman, 153 Mo. 625. (5) The sheriff's (trustee's) deed to plaintiff is fatally defective and void; it fails, first, to recite any number of days of notice given, as provided in deed of trust; and second, it does not recite that the notice of sale was published in Jefferson County. Neither is said deed signed by the sheriff as successor-trustee and the then acting sheriff. Nor is there any declaration in this deed that Ray Williams was the then acting sheriff of Jefferson County. West v. Axtell, 17 S.W.2d 332.

Frank Dietrich and R. E. Kleinschmidt for respondent.

(1) A court has full control over its judgments during the term at which they were rendered, and may, in the exercise of sound discretion, amend, correct, revise, supplement, open or vacate them, upon sufficient cause shown. 34 C. J. 207, sec. 436; Reid v. Moulton (Mo. Sup.), 210 S.W. 36; Crawford v. Ry. Co., 171 Mo. 68; Smith v. Perkins, 124 Mo. 50. (2) Where deed of trust provides that in case of the absence, death, refusal to act, or other disability of the trustee, "the then acting sheriff" shall have power to sell the property, the sheriff in office at the time of the foreclosure is the donee of the powers of sale, in the event that trustee is absent; and no application for the appointment of a new trustee is necessary. West v. Spencer, 238 Mo. 65; Betzler v. James, 227 Mo. 375; Feller v. Lee, 225 Mo. 319; Adams v. Carpenter, 187 Mo. 613. (3) As Sec. 2235, R. S. 1919, requires all foreclosure sales to be held in the county where the land lies, sale may be anywhere in said county properly designated by the notice of sale and not contrary to the terms of the deed of trust or the intention of parties as expressed therein. Stewart v. Brown, 112 Mo. 171; Synder v. Railway, 131 Mo. 568; 41 C. J. 967, sec. 1414. (4) The recitals in trustee's deed are prima-facie evidence of the truth thereof, and when not contradicted become conclusive. Sec. 2253, R. S. 1919; Hassler v. Mercantile Bank (Mo. Sup.), 184 S.W. 979. (5) A trustee's deed, even though defective, passes the legal title to the land described therein. Schanewerk v. Hoberecht, 117 Mo. 22; Hume v. Hopkins, 140 Mo. 73; Feller v. Lee, 225 Mo. 331. (6) One who is present at the foreclosure sale of his property and does not advise prospective bidders of the alleged invalidity of the deed of trust being foreclosed, or who accepts the benefits of said sale, is thereafter estopped to deny the validity thereof. Austin v. Loring, 63 Mo. 19; Chase v. Williams, 74 Mo. 429; Grooms v. Mullett, 133 Mo.App. 477; Cadematori v. Gauger, 160 Mo. 353; McDonnell v. Saving & Bldg. Assn., 175 Mo. 274; Hector v. Mann, 225 Mo. 228; Lawson v. Cunningham (Mo. Sup.), 204 S.W. 1108; Milan Bank v. Richmond (Mo. Sup.), 217 S.W. 76.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action in ejectment. The court rendered judgment in favor of plaintiff for possession of the real estate, for $ 450 damages, with the monthly rents and profits at the rate of $ 100 a month from April 16, 1927, to the day of restitution of the premises, and for costs. Defendants appealed.

The petition was an ordinary pleading in ejectment. The answer comprised a general denial and an equitable answer and cross-bill praying for affirmative relief. However, the record shows that the equitable answer and cross-bill were withdrawn by defendants' counsel, thus leaving the general denial only as an answer.

The defendants offered no testimony. The evidence adduced for plaintiff warrants the finding that the title to the lands in controversy emanated from the Government. Thomas P. Eaves and Clara L. Eaves were the common source of title. Eaves and his wife acquired the land by a warranty deed from J. B. Alderson and wife, dated January 29, 1918. Eaves and his wife placed two deeds of trust on the land. On December 1, 1921, they executed a deed of trust on said land to the Federal Land Bank of St. Louis to secure notes of even date aggregating $ 6,000. On December 23, 1921, they executed a second deed of trust on said land to the Farmers & Citizens State Bank to secure a note for $ 3,644.75, dated December 1, 1921, due one year after date, drawing interest at eight per cent annually. On April 9, 1926, said Eaves and wife by warranty deed sold and conveyed the land to defendants. In the second deed of trust, A. O. White was named trustee, and, as default was made in the payment of the note secured by the second deed of trust, the Farmers & Citizens Bank, the owner and holder of the note, requested Ray Williams, the Sheriff of Jefferson County, on the information that A. O. White was in Texas, to act as trustee. He agreed, and, after advertising in a Jefferson County newspaper for four weeks, beginning March 24, 1927, and ending April 14, 1927, he did, on April 16, 1927, at the post-office door in the city of DeSoto, Jefferson County, sell the land in controversy to R. A. Marsden, at public auction for $ 5,825. It seems that the land was sold subject to the first deed of trust, and that there remained in the hands of the sheriff-trustee, after paying the note secured by the second deed of trust, interest thereon and expenses of sale, the sum of $ 1707.65 to the credit of defendants. On April 22, 1927, the defendants executed an assignment of the sum in the hands of the sheriff-trustee, reading:

"Whereas Daniel E. Nipp and Mattie June Nipp were on April 16, 1927 the owners of the following described land located in Jefferson County, Mo. [describing lands in controversy].

"'Whereas default was made by them in the payment of a certain second deed of trust and note approximately four thousand ($ 4,000) dollars due to the Farmers & Citizens State Bank of DeSoto Mo., and whereas foreclosure proceedings were had at DeSoto, Mo., by the holder of said note and deed of trust and one Ray Williams, sheriff of said county, as successor trustee, sold said real estate on April 18, 1927, under said foreclosure to one R. A. Marsden and said sheriff-trustee received upon said sale a surplus of over seventeen hundred ($ 1700) dollars which he now has and holds as belonging to the owners of the equity in said real estate, namely, the undersigned; and whereas the undersigned have engaged Wade L. McCann of St. Louis, Mo., to try and negotiate a new loan for them either upon a first deed of trust or second deed of trust and to aid in securing a good bond in order that they may redeem said real estate; and the undersigned have also engaged the services of Max F. Ruler, an attorney at law of St. Louis, Mo., and Sam McKay, a lawyer of DeSoto, Jefferson County, Mo., to use their best efforts and endeavor for the undersigned to redeem said real estate from said foreclosure...