McNutt v. Mutual Benefit Life Insurance Company of New Jersey

• Decision Date: 23 March 1904
• Citation: McNutt v. Mutual Benefit Life Insurance Company of New Jersey, 79 S.W. 703, 181 Mo. 94 (Mo. 1904)
• Parties: McNUTT et al., Appellants, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY et al
• Court: Missouri Supreme Court

79 S.W. 703

181 Mo. 94

McNUTT et al., Appellants, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY et al

Supreme Court of Missouri, Second Division

March 23, 1904

Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.

Reversed and remanded.

R. J Ingraham and L. C. Slavens for appellants.

(1) When by a deed of trust the parties contract that in case of the death or disqualification of the trustee, the then sheriff of the county (whoever he may be) shall thereupon become his successor to the title, he acts as an individual and not officially, and therefore, neither he nor his sureties are liable on his official bond for his abuse of such trust. Chase v. Davis, 88 Mo. 585; Harwood v. Tracy, 118 Mo. 631. The title which the then sheriff thus takes as an individual, and not officially, stays with him till it is divested by his death, or other disqualification, or by the payment of the debt. It is otherwise when he is appointed successor by the court, for in that case the statute makes it his duty to act as sheriff and he is liable on his bond. (2) By deeds of trust, in Missouri the legal title is vested in the trustee, and not a mere lien, or power to sell. Shanewesk v. Hoberecht, 117 Mo. 22; Springfield v. Donovon, 120 Mo. 432; Hume v. Hopkins, 140 Mo. 65. By the same token, where the legal title is thus conveyed to the trustee to be held by him and his successor designated, in trust, with provision, as in this case, that in case of the trustee's death or disqualification, a person designated shall thereupon "become his successor to the title, and the same become vested in him in trust," then, in the contingency mentioned, the said successor takes the legal title in trust, exactly as it was held by the original trustee. And he takes it immediately upon his death, or removal, or other disqualification. (3) If the trustee dies (there being no provision for a successor), the title descends to his heirs. Jones on Mortgages, sec. 1790. (4) Under the provisions of this deed of trust, neither the original trustee nor his successor to the title could sell except on request of the holder of the note. The request does not confer upon the successor either the title to the property or the power to sell. It only evokes the power which the deed has already vested in him, along with the title to the property, the power to sue being coupled with the title.

Joseph Morton and James A. Plotner for respondent Life Insurance Company.

(1) Appellants' construction of the succession clause in the deed of trust does violence to the evident intent of the parties, as shown by the language of the clause. (2) The deed of trust, being only a contract, must be construed as any other contract and the intention of the parties, gathered from the whole instrument, will govern in ascertaining its meaning. Hanna v. South St. Joseph Land Co., 126 Mo. 1; Knapp v. Publishers, 127 Mo. 53. (3) That construction should be adopted which will make the contract effectual, and not such as to render it inefficacious. Leiweke v. Jordan, 59 Mo.App. 619. (4) The parties by the succession clause of the deed were evidently endeavoring so to provide for the succession that in any event there would be some one qualified to make a sale, if a sale should be necessary. (5) The word "absence" does not mean "removal," as appellants seem to understand. (6) The word "then" is used to make it clear that it is the sheriff who is in office at the time the request for sale is made, and not the one who is in office at the time of the execution of the deed. Were it not for this qualifying word, it might well be claimed that the parties had in mind the person who was sheriff when the deed was executed.

Webster & Gilmer for respondents McFarland and Heckel.

(1) The word absence as used in the succession clause does not mean non-residence. Elec. Co. v. Bry, 88 Mo.App. 135. (2) In construing ambiguous language in a contract, the intention of the parties governs and is to be gathered and determined from the nature and effect of the whole instrument in the light of the surrounding circumstances, in contemplation of which the parties are supposed to have contracted. Torbert v. Jeffrey, 161 Mo. 654; Estes v. Desnoyers Shoe Co., 155 Mo. 584; Renn v. Supreme Lodge K. of P., 83 Mo.App. 446; Ins. Co. v. Redman, 91 Mo.App. 52. (3) In construing a contract, the court may take into consideration what may reasonably be presumed to have been in the minds of the parties, and to that end will put itself in the place of the parties and view the subject-matter from their standpoint. Hax & Bros. v. Hax, 84 Mo.App. 313; Jewelry Co. v. Bertig, 81 Mo.App. 399. (4) In construing a contract, usage and custom with regard to similar contracts and the construction put upon them by the bar in actual practice, will be considered. Carney v. Chillicothe Water and Light Co., 76 Mo.App. 536; Wilcox v. Baer, 85 Mo.App. 592; Baer v. Glaser, 90 Mo.App. 294; Fears v. Riley, 148 Mo. 49; Reddick v. Walsh, 15 Mo. 579; Thornton v. Thornton, 27 Mo. 302. (5) The default referred to in the succession clause means a default so treated by the cestui que trust and not a default consented to or waived by him. Albert v. Grosvenor Investment Co., L. R. 3 Q. B. 123; Whelan v. Riley, 61 Mo. 565; Phillips v. Bentz, 82 Mo. 639; Wolz v. Parker, 134 Mo. 458; State ex rel. v. Ross, 136 Mo. 259; Swon v. Stevens, 143 Mo. 384.

OPINION

BURGESS, J.

The purpose of this action is to redeem from sale part of a city lot in Kansas City made under a deed of trust to secure the payment of a note for $ 1,200, payable July 1, 1890. The sale occurred on November 14, 1900, and the suit was brought to the next regular term of the circuit court thereafter of Jackson county.

Defendants demurred to the petition upon the ground that it does not state a cause of action. The demurrer was sustained, and plaintiffs declining to plead further, judgment was rendered for defendants dismissing the petition, and against plaintiffs for costs. Plaintiffs appeal.

The deed of trust was executed on July 1, 1885, by Collin McNutt by which he conveyed the land in question to Samuel M. Jarvis in trust to secure to The Mutual Benefit Life Insurance Company the payment of said note. McNutt died in 1888, and thereafter his heirs at law paid the interest on, and secured extensions of said note until July 1, 1900, when default was made in the payment of the principal. The deed of trust contained the following provisions:

"If default be made in the payment of said note, or any part thereof, or any of the interest thereon when due, or in the faithful performance of any or either of the agreements as aforesaid, then the whole amount of said note, with interest thereon at ten per cent per annum from date, shall, at the option of the holder of said note, become immediately due and payable, and this deed shall remain in force, and the said party of the second part, or in case of his death, inability, refusal to act, or absence from Jackson county, then Roland R. Conklin, of the county of Jackson, State of Missouri, who shall thereupon become his successor to the title of said property, and the same become vested in him, in trust for the purposes and objects of these presents, or in case of the death, inability, refusal to act, or absence from Jackson county, of both said Samuel M. Jarvis and said Roland R. Conklin, then the (then) sheriff of said county of Jackson and State of Missouri (who shall thereupon become their successor to the title to said property, and the same become vested in him in trust for the purposes and objects of these presents, and with all the powers, duties and obligations thereof), may at the request of the holder of said note proceed to sell the property hereinbefore described."

"In 1893, Jarvis, the trustee, and Conklin his first successor, both left Missouri, and became residents of New York City. At that time John P. O'Neill was sheriff of Jackson county, and continued to be sheriff until January 1, 1897, when he was succeeded by Robert S. Stone, who held the office until after the trustee's sale was made, November 14, 1900. On October 20, 1900, Jarvis and Conklin, being still residents of New York and absent from Missouri, the holder of the note, which had been then in default since July 1, 1900, requested said Stone, as substitute trustee, to advertise and sell the land under the deed of trust, and he did so, and Eva McFarland bought the land at trustee's sale, and afterwards sold it to Annie Heckel.

"Eva McFarland and Annie Heckel were both strangers to the deed of trust transaction. Plaintiffs do not allege any irregularity, fraud, unfairness or imposition in the trustee's sale. The sole question in the case is as to whether or not Robert S. Stone had any power to act as trustee."

It is insisted by plaintiffs that where in a deed of trust, as in the case at the bar, the parties contract that in case of the death or disqualification of the trustee named therein that the "then" sheriff of the county (whoever he may be) shall thereupon become his successor to the title, he acts as an individual, and not officially, and therefore, neither he nor his sureties are liable on his official bond for his abuse of such trust. (Citing State ex rel. Chase v. Davis, 88 Mo. 585; Harwood v. Tracy, 118 Mo. 631, 24 S.W. 214.) That the title which the sheriff takes in such circumstances, he takes as an individual, and not officially, and it remains in him until divested by his...