Miller v. New Madrid Banking Co.

• Decision Date: 01 July 1911
• Citation: 139 S.W. 192,235 Mo. 522
• Parties: MILLER v. NEW MADRID BANKING CO.
• Court: Missouri Supreme Court

139 S.W. 192

235 Mo. 522

MILLER v. NEW MADRID BANKING CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. APPEAL AND ERROR (§ 537) — RECORD — EXCEPTIONS — PRESERVATION — TIME.

Exceptions are preserved only by a bill filed during the term at which they are taken or within the time extended therefor by the court or the judge in vacation in the manner prescribed by statute.

2. EXCEPTIONS, BILL OF (§ 40) — ORDER GIVING TIME FOR FILING.

An order granting time in which to file a bill of exceptions will be considered a second extension of the time given therefor, its language being sufficient to give that effect, without which the bill was not filed in time.

3. MORTGAGES (§ 341) — DEED OF TRUST — FORECLOSURE SALE — PERSON EMPOWERED TO SELL.

Under a deed of trust conferring the legal title on the person named as trustee, authorizing him on condition broken and request of the holders of the secured note to sell, and in case "of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff * * * at the request of the legal holder of said note may proceed to sell" — power to sell is conferred on the one who is sheriff when, the conditions for sale by a sheriff existing, he is requested by the holder of the note to sell, though he was not sheriff when the trustee died.

4. ESTOPPEL (§ 32) — BY DEED — ATTACK ON TITLE.

The sale of land under a deed of trust by a sheriff having been at the request of the legal holders of the note secured, who were present at the sale, bought the land, and took the sheriff's deed, which recited that the sale was at their request, they cannot, as against one to whom they conveyed the land by warranty deed, assert any validity in the deed of trust or the note secured thereby, even if the sheriff was not one authorized by the deed of trust to make a sale under it.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by George Miller against the New Madrid Banking Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded, with directions.

Geo. H. Traylor and Lewis Luster, for appellant. A. H. Livingston, for respondent.

VALLIANT, J.

The plaintiff's complaint is set out in his petition in four separate counts, and in two suits which were consolidated. The trouble grows out of the purchase of 100 acres of land in Howell county by plaintiff of defendant, and the alleged failure of defendant to make good the title to 58 acres. The purchase price of the land was $1,800, whereof the plaintiff paid $600 cash and executed his two notes for $600 each for the balance, secured by deed of trust on the land purchased. The petition in plaintiff's first suit is in three counts; in the first, after alleging defect in title to the 58 acres which defect consisted in an unsatisfied deed of trust executed by one Blanchard, a former owner, for $225, it is alleged that plaintiff had an opportunity to sell the 100 acres at an advance of $1,200 over his purchase price, but on discovery of the failure of title the prospective purchaser declined to buy, and thereby the plaintiff lost $1,200, for which he asks judgment. The second count was like the first in statements of facts, except the alleged lost opportunity to sell is not mentioned, and the prayer for judgment is that the defendant be required to pay off and satisfy the alleged $225 deed of trust. The third count complains that after making the purchase, when the plaintiff was ready to take possession, he found a tenant of defendant's in possession who would not surrender until two months had passed, and the plaintiff was thereby damaged $100, for which he asked judgment. In the first and second counts plaintiff alleged that it was a part of the contract of purchase that defendant would furnish plaintiff an abstract of title and when plaintiff delivered his deed of trust to defendant securing the two $600 notes, defendant presented an abstract of title, but would not allow plaintiff to retain it so as to examine it or have it examined, hence plaintiff was fraudulently prevented from discovering the defect in the title. Defendant's answer in effect was a general denial. While that suit was pending, plaintiff filed another suit against this defendant and the trustee in the deed of trust given by plaintiff, in which plaintiff alleged that after service of process in the first suit defendant caused the trustees to advertise the property for sale to foreclose the deed of trust, alleging that they had secretly conspired to do so, and plaintiff had just discovered the advertisement. Plaintiff prayed an injunction to prevent the sale. On the filing of that suit the injunction issued.

The answer of the defendants admitted that they had advertised the property for sale to foreclose the deed of trust, but denied all other allegations. Afterwards plaintiff filed an amended petition in the second case in which he reiterated the charges of fraud against the defendant banking company in withholding the abstract of title from him, and averred that he had already paid the defendant the full value of all the land of which he received good title, and then offered to quitclaim to defendant that part of the land to which the title was defective and prayed that the two $600 notes given by him be surrendered and canceled and the injunction be made perpetual. The defendant, the banking company, filed a motion to strike out the amended petition which was overruled, and then filed a motion to dissolve the injunction, which was also overruled, and then filed its answer admitting that it had advertised the property for sale to foreclose the deed of trust, the notes already being past due, and denied all other allegations. Before the trial the two suits were consolidated to be tried as one.

In the Blanchard deed of trust for $225, which it is alleged constitutes the defect in the title which defendant conveyed to plaintiff, it was specified that if the maker of the note should refuse or neglect to pay it when it became due the trustee therein named or in case of his absence, death, refusal to act, or disability in anywise, the (then) acting sheriff of Howell county, at the request of the legal holder of the note, may proceed to sell, etc., to foreclose the deed of trust. The trustee died and the deed of trust was foreclosed by sale of the land by C. E. Kimberlin, then sheriff of Howell county, and at that sale the property was bought in by T. H. Digges and W. H. Garanflo who were at that time the legal holders of the note secured by the deed of trust; their bid was $400 which the deed recites they paid. Kimberlin was sheriff of Howell county when he made the sale, but he was not sheriff at the date of the death of the trustee named in the deed. The trustee died December 5, 1900, and at that time the note was past due and unpaid, and J. C....