Meysenburg v. Schlieper

• Court: United States State Supreme Court of Missouri
• Writing for the Court: CURRIER
• Citation: 48 Mo. 426
• Parties: T. A. MEYSENBURG, TRUSTEE FOR BERNARD N. STERNBERG, Appellant, v. C. W. SCHLIEPER, CHARLES BORG AND ROBERT BARTH, Respondents.
• Decision Date: 31 October 1871

48 Mo. 426

T. A. MEYSENBURG, TRUSTEE FOR BERNARD N. STERNBERG, Appellant,
v.
C. W. SCHLIEPER, CHARLES BORG AND ROBERT BARTH, Respondents.

Supreme Court of Missouri.

October Term, 1871.

[48 Mo. 427]

Appeal from St. Louis Circuit Court.

The Borg deed of trust was given May 28, 1867, to secure four notes for $1,750 each, of that date, and payable in one, two, three and four years respectively. Previous to this deed another had been given, November 14, 1866, to one Barth, to secure the payment of certain other notes. On the 19th of October, 1867, Windeck, being owner of half of said property, subject to the foregoing deed of trust, conveyed his interest to plaintiff Meysenburg, to secure a note of $1,200 in favor of Sternberg, due sixty days from date.

On the 10th day of April, 1868, the real estate was sold under the first or Barth deed of trust for some $9,400, which amount paid the first debt, and left a surplus of $3,719.85.

Two thousand three hundred and ten dollars of principal and interest falling due on the Borg notes, the property was advertised under that deed for sale on the 26th of June of the same year, but the sale was prevented by the plaintiffs' injunction.

On the 3d day of December of that year, the surplus of $3,719.85 was paid over to defendant Schlieper, the beneficiary in the second or Borg deed of trust. At that time only the first Borg note for $1,750 was due, and the payment far more than satisfied that note, principal and interest, and went toward the satisfaction of the one due May 28, 1869. The property was afterward sold under the Borg deed of trust, in July, 1869.

For the facts in this case see also the opinion of the court, and the same case as reported in 46 Mo. 209.

Geo. P. Strong, for appellant.

I. The payment of the $3,719, December 3, 1868, discharged all of the debt that was due, and destroyed or took away all the right of Schlieper's trustee to sell. It therefore took away whatever right he ever had to be compensated for any depreciation of the property; it suspended his right of sale until May

[48 Mo. 428]

28, 1869, and before that time both injunctions had been dissolved. (Salmon v. Claggett, 3 Bland, 179; Kennedy's Adm'r v. Hammond, 16 Mo. 357; Reddlesbarger v. McDaniel, 38 Mo. 142.) The depreciation of paper currency forms no part of the damages. (Bircher v. Parker, 40 Mo. 121; Roach v. Burnes, 33 Mo. 323.)

II. The only remedy remaining, if any did remain, was by an action on the injunction bond. The first case was out of court, and in the second there was a final judgment against the sureties for the costs which constitute damages secured by the bond. No second judgment could be rendered against them.

III. The engine, machinery, etc., were fixtures and passed to the grantee of Barth, trustee. The testimony shows that all this machinery was attached to the soil and freehold in such a way as to make it a permanent attachment to the soil, and therefore, as between grantor and grantee, mortgagor and mortgagee, a fixture, passing with the realty under the sale by Barth, trustee. It was error to take their condition or relative value into the account at all in estimating damages. Schlieper had no interest in them. (Rogers v. Crow, 40 Mo. 93; Pillow v. Love, 5 Hayw. 109; Phillipson v. Mullanphy, 1 Mo. 620; Beckwith v. Boyce, 9 Mo. 560; Cohen v. Kyler, 27 Mo. 122; Goddard v. Chase, 7 Mass. 432; Union Bank v. Emerson, 15 Mass. 159; McDaniel v. Moody, 3 Stew. 314; Dispatch Line v. Bellamy M. Co., 12 N. H. 205, 232-3; 4 Metc. 306; 7 Watts, 106; 19 Pick. 314.)

There is no testimony of any depreciation between the date of the granting and the dissolution of the first injunction. There is a total want of any proof that the depreciation was the consequence or direct effect of the injunction.

Kehr, for respondents.

I. The injunctions having been dissolved, Schlieper is entitled under the bond to recover all damages occasioned by such injunctions. Upon the dissolution of an injunction restraining the sale under a deed of trust, the court, in assessing the damages, should ascertain the probable amount that would have been realized, the

[48 Mo. 429]

destruction or deterioration of the property, the depreciation of its market value, expenses of litigation, and all other matters of loss or injury sustained by the creditors in consequence of the injunction. (Kennedy's Adm'r v. Hammond, 16 Mo. 341; City of St. Louis v. Alexander, 23 Mo. 522; Reddlesbarger v. McDaniel, 38 Mo. 141-2.)

II. ( a) In both his petitions herein, appellant Sternberg has treated the articles as personal property; he has enjoined their sale as such, and cannot now gainsay what by the record he has alleged. ( b) The articles are not fixtures, as between vendor and vendee. Machinery does not pass with the freehold. (Lacy v. Gibony, 36 Mo. 320; Collins et al. v. Mott, 45 Mo. 101; Hunt v. Mullanphy, 1 Mo. 508.)

III. On the non-payment of the first note all the others became due; and it is a fallacy to speak of the maturity of the first or second note, for if the right of sale existed, then ipso facto the entire debt and interest became due and payable. Whoever prevents the performance of a condition cannot take advantage of its non-performance. (Major v. Hickman, 2 Bibb, 217; Carroll v. Collins, id. 431; Clendenin v. Paulsel, 3 Mo. 230.) The appellant cannot say that the debt did not mature because we did not sell; for nothing but his wrongful act in suing out the injunction prevented us from selling. He cannot take advantage of his own wrong; and hence the test is, had we the right to sell? But the right to sell on the respective days for which the property was advertised was adjudicated in our favor in the original cases, and is therefore no longer an open question.

IV. The appellant assumes that the $3,719.85 real estate surplus, which of right belonged to Schlieper as second encumbrancer, and which the court, on the 3d of December, 1868, ordered to be turned over to him, extinguished Schlieper's first and second note. This is not so.

( a) The whole debt (and not only the first and second notes) was then due by virtue of the right to sell on the 1st of December, 1868.

( b) By the terms of the deed of trust the trustee was authorized to sell the property conveyed, or any part thereof. The

[48 Mo. 430]

$3,719.85, being the proceeds of the real estate mortgaged, represents but a part of...