Mendell v. Howard

• Decision Date: 02 December 1918
• Docket Number: No. 13058.,13058.
• Citation: 200 Mo. App. 427,208 S.W. 497
• Parties: MENDELL et al. v. HOWARD et al.
• Court: Missouri Court of Appeals

208 S.W. 497

200 Mo. App. 427

MENDELL et al. v. HOWARD et al.

No. 13058.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Vernon County; 3. G. Thurman, Judge.

Action by Peter Mendell and another against Charles M. Howard and others. From judgment for plaintiffs, defendants appeal. Affirmed.

John H. Crain, of Ft. Scott, Kan., and M. T. January, of Nevada, Mo., for appellants.

Homer M. Poage and W. M. Bowker, both of Nevada, Mo., for respondents.

ELLISON, P.

This case stands for itself and another wherein John A. Silvers is plaintiff against these defendants. The two involve the same questions and grow out of the same transactions, and they were consolidated in the circuit court and tried together, Plaintiff Mendell is a judgment creditor, with a junior lien on certain lands. He seeks to recover from defendants certain money claimed to be a surplus left in the hands of defendant January as trustee in a sale under a prior deed of trust. Plaintiff Silvers seeks to recover the remaining part of the surplus by reason of being the owner by purchase at a foreclosure sale conducted by defendant January as trustee. The judgment was for plaintiffs in the trial court.

The matters out of which the case grew are lengthy and greatly Involved, much of which need not be noticed here. One Zweigart once owned a large tract of land in Vernon county. He died owing defendant Howard $7,000, which was allowed against his estate in the probate court. He had given a deed of trust on the land to secure an indebtedness of $8,090. Before his death he made a voluntary deed to the land to his daughter, and she gave a subsequent deed of trust on it to secure $2,911, to a bank at Rich Hill, Mo. He also was indebted to plaintiff Mendell in the sum of $1,800. This was allowed against his estate and afterwards, in an action in the circuit court, it was made a lien on such real estate subject to the deeds of trust. After Zweigart's death the bank bought the first deed of trust securing the debt for $8,000 and took an assignment of it. The bank then had Its deed of trust for $2,911 foreclosed and John A. Silvers (plaintiff in the other suit) became the purchaser of the land at the foreclosure sale.

After defendant Howard had his claim of $7,000 allowed, against Zweigart's estate he brought suit against Silvers, Zweigart's daughter, the bank, and this plaintiff, wherein he asked that his judgment of allowance be declared a lien on the land mentioned, and he offered in his petition to pay to the bank the amount of the two notes, in the deeds of trust then held by the bank, but he did not keep such tender good by deposit. He lost the case in the circuit court, but on appeal to the Supreme Court he was successful, and that court directed that:

"The case should be reversed and remanded, with directions to the trial court to enter a decree setting aside the conveyance from "Henry Zweigart to Lizette Zweigart of the lands in controversy and decreeing plaintiff's judgment to be a lien upon said lands, and setting aside the foreclosure sale and the trustee's deed to Silvers, upon payment to the defendant bank of the principal and interest due upon the two Zweigart notes as of the date at which this suit was brought, and that defendant bank, upon said payment, assign to plaintiff said notes and the deeds of trust securing the same, and for costs." Howard v. Zweigart. 197 S. W. 46.

This judgment of the Supreme Court was rendered in 1917, and in compliance therewith defendant Howard, on the 15th of September of that year, paid to the bank the amount due on the two deeds of trust to that date which, with the $915 interest due when he brought his suit, amounted to $10,911.65, and the bank assigned the two notes and deeds of trust to him. Defendant Howard then immediately directed January, the trustee, to foreclose the deed of trust securing the note for $8,000. January sold it on the 15th of October, 1917, and Silvers became the purchaser for $27,300, which sum he paid to January.

It is thus seen that though the Supreme Court set aside Silvers' purchase under the deed of trust for $2,911, he again became the owner of the land by purchasing under this last sale. Silvers paid to the bank all interest due on the two deeds of trust except the $915 paid by defendant Howard when the bank assigned to him as stated above.

This controversy arises over the disposition which January made of the $27,300, paid to him by Silvers. No question is made on account of January's payment of court costs, costs of foreclosure, and defendant Howard's judgment for $7,000 and interest; nor is any question made regarding January paying Howard the amount of the principal of the two deeds of trust, and $915 interest due before Howard's offer, which Howard paid the bank when the latter assigned them to him as directed by the Supreme Court. The only objection is on account of his payment to Howard out of the surplus in his hands, interest on the debts secured by these deeds of trust from the 1st of November, 1911, the day he instituted his action, until the 15th day of September, 1917, the day he paid the bank, amounting, at 8 per cent., to $5,458.69. The theory of defendants is that the offer made by Howard in his petition a though unaccompanied by a deposit in court, itself, to use words of counsel, "is a sufficient tender to effect redemption," and therefore Howard became the owner of the two, deeds of trust and entitled to the interest thereon between the date of his tender and the...