Morgan v. Willman

• Decision Date: 10 October 1927
• Docket Number: No. 26231.,26231.
• Citation: 1 S.W.2d 193
• Parties: ANNA MORGAN, Appellant, v. REINHOLD WILLMAN ET AL.
• Court: Missouri Supreme Court

1 S.W.2d 193

ANNA MORGAN, Appellant, v. REINHOLD WILLMAN ET AL.

No. 26231.

Supreme Court of Missouri. Division No. 1.

October 10, 1927.

Appeal from Buchanan Circuit Court. — Hon. W.H. Utz, Judge.

REVERSED AND REMANDED (with directions).

Randolph & Randolph for appellant.

(1) The deed of trust held by plaintiff on the property in question was duly recorded, and was a valid and subsisting lien against the real estate in question, and could only be extinguished by payment thereof. The taking of the property for public use without paying plaintiff's debt secured by the trust deed was a taking of private property for public use without compensation. Sec. 21, Art. 2, Mo. Constitution; Secs. 7775, 7776, 7833, R.S. 1919; Land & Imp. Co. v. Kansas City, 293 Mo. 674; Peters v. Buckner, 288 Mo. 618; County Court of Clay County v. Barker, 210 Mo. App. 65; Holmes v. Kansas City, 209 Mo. 513; St. L.K. & N.W. Ry. Co. v. Clark, 119 Mo. 366. (2) The payment by the city comptroller under the direction of the city counsellor to the clerk of the circuit court with directions to notify the defendants Willman, and to pay the money to them, was not a payment into court for the benefit of this plaintiff. The payment of this money by the clerk of the circuit court to the Willmans was under the direction of the city authorities. Under such circumstances the clerk could not be charged with wrongfully paying out the money, as he followed the directions given by the city. St. L.K. & N.W. Ry. Co. v. Clark, 119 Mo. 366. (3) If no release of a mortgage or deed of trust appears of record, the purchaser of real estate, whether by condemnation or otherwise, must assume that the encumbrances shown of record remain unpaid, and must pay the money into court for the benefit of the holders of the encumbrances. Secs. 2237, 7770, 7776, 7833, R.S. 1919. (4) There was no payment to plaintiff and no deposit in court for her. A payment into court is a payment to remain in the custody of the court until the rights of the parties have been determined. That is, to abide the event of the litigation. Rapalje & Lawrence Law Dictionary, under title "Payment Into Court." A payment to the clerk is not a payment into court unless accompanied by directions from the court to hold until the further order of the court. Hammer v. Kaufman, 39 Ill: 87; Baker v. Hunt, 1 Wend. 103. (5) A deposit in court is where property is deposited with an officer of the court for safe-keeping, pending litigation. That is, until a question as to the person entitled to its possession is determined, or where the money is paid into court as security. Rapalje & Lawrence Law Dictionary, under title, "Deposit In Court." (6) Deeds of trust may be foreclosed either by suit in equity or trustee sale. Secs. 2219, 2222, R.S. 1919. (7) Injunction is a proper remedy to prevent property being appropriated for public use, before payment of compensation. Holmes v. Kansas City, 209 Mo. 513.

Gaddy, Norris & Sawyers for respondent.

(1) It is proper upon condemnation of mortgaged land to award the owner of the equity of redemption full value of the land since the damages awarded stand in the place of the land and can be subjected to payment of the mortgage. Thompson v. Railway Co., 110 Mo. 147; Railroad v. Baker, 102 Mo. 553. (2) The plaintiff in the condemnation suit and those under whom she claimed, to-wit, Gardner and Hager, were awarded nothing in such suit for any interest they may have had in the land, and they cannot now collaterally attack the award of the commission in the case of City of St. Joseph v. Simon Binswanger et al., the court in that case having jurisdiction of the subject-matter and of the parties. 2 Lewis on Eminent Domain (3 Ed.) p. 1510, art. 866; Thompson v. Railway Co., 110 Mo. 147; Musick v. Railroad Co., 114 Mo. 309; Roosa v. Railway Co., 114 Mo. 508; Crenshaw v. Snyder, 117 Mo. 167; Union Depot Co. v. Snyder, 117 Mo. 138; Burke v. Kansas City, 118 Mo. 309; Mitchell v. Railroad Co., 138 Mo. 326; Petet v. McClanahan, 297 Mo. 677. (3) The payment of the $12,500 to clerk of the circuit court, was a payment into court for the benefit of the owners of the property in question. Seafield v. Bohne. 169 Mo. 537 (8). (4) If the plaintiff had any interest in the award for the land taken in the condemnation proceedings she was negligent in failing to assert her rights in that cause. Thompson v. Railway Co., 110 Mo. 147; Railroad v. Baker, 102 Mo. 553; Burke v. Railroad Co., 118 Mo. 309; Holt County v. Cannon, 114 Mo. 514. (5) The result of condemnation proceedings cannot be avoided or set aside because damages are inadequate or excessive, or because no damages are awarded. Burke v. Kansas City, 118 Mo. 309; Lewis on Eminent Domain, p. 1512, art. 833; Draper v. Mackey, 35 Ark. 497; Dunlap v. Pulley, 28 Iowa, 469; Asher v. Jones County, 29 Tex. Civ. App. 353.

SEDDON, C.

Suit, commenced on June 19, 1924, in the Circuit Court of Buchanan County, to foreclose a deed of trust in the nature of a mortgage upon certain real estate situate in the city of St. Joseph and described as all of the south sixty feet of Lots 1, 2 and 7, of the subdivision of Lots 1 and 2, in Block 51 in Smith's Addition, an addition to the city of St. Joseph, Missouri, which real estate, together with other contiguous and surrounding lands, was the subject of a condemnation suit or proceeding brought by the city of St. Joseph for the purpose of acquiring lands for public use as a site for a city hall. The petition is cast in two counts, the first count being in conventional form for the foreclosure of said deed of trust, and the second count seeking an injunction against the city of St. Joseph and certain named contractors, as defendants, to restrain and prevent their taking possession of the described real estate and removing the buildings therefrom until the rights and interest of plaintiff in said real property have been fully ascertained and determined, and until plaintiff, as the holder and owner of said mortgage securities, has been paid the amount of her mortgage lien, or interest, in said real estate, together with accrued interest thereon. Plaintiff, by her petition, invokes the protection and aid of Section 21, Article 2, of the Constitution of this State, and of Article 5 of the amendments to the Constitution of the United States. The answer of defendant, city of St. Joseph, in substance, denies generally the allegations of the petition and pleads a prior adjudication, in the condemnation proceeding, of whatever rights plaintiff may have had in the described land by reason of the said mortgage or deed of trust, and denies specifically that plaintiff has any right, title or interest in or to the land condemned and taken for public use.

The title in fee to the described real property was owned by defendants Reinhold Willman and Josephine Willman, his wife, by virtue of a warranty deed conveying said real property to them, dated June 26, 1913, and duly recorded in the office of the Recorder of Deeds of Buchanan County on June 27, 1913. On June 27, 1921, said Reinhold Willman and Josephine Willman made, executed and delivered a deed of trust conveying the described real property to Joseph Hager, of Buchanan County, Missouri, as trustee for R.E. Gardner, also of Buchanan County, Missouri, to secure the payment of their certain promissory note of even date therewith for $3500, payable five years after date to the order of R.E. Gardner at the office of H.S. Smith Investment Company, St. Joseph, Missouri, with interest at the rate of seven per cent per annum, payable semiannually from date until the payment of said note, and providing in the body of said note that if said note is not paid at maturity the makers thereof shall pay the reasonable expenses of collection, including an attorney's fee. The deed of trust aforesaid was duly recorded in the office of the Recorder of Deeds of Buchanan County on June 28, 1921. The evidence discloses that R.E. Gardner was an employee of the H.S. Smith Investment Company; that the note was made payable to him as a matter of convenience in the negotiation of said note; that he had no pecuniary interest therein; and that he endorsed the note, without recourse, on the back of the note immediately upon the execution and delivery of the note. The evidence further discloses that Joseph Hager, the trustee named in said deed of trust, was an officer of the H.S. Smith Investment Company. It further appears from the evidence that the note in question was given in renewal of an earlier and maturing note, which was then owned and held by Mrs. Emma Maier, the mother of plaintiff herein; in other words, the note and deed of trust, dated June 27, 1921, were given in renewal of an earlier and maturing note evidencing a past indebtedness of the makers thereof, rather than evidencing a present loan made to the makers. Mrs. Maier testified on the trial of the instant suit that she had acquired the earlier note upon the distribution of her deceased mother's estate, as an heir of her mother, who had been the owner and holder of the earlier note, and that she held and owned the renewal note and deed of trust of June 27, 1921, for some time after the execution and delivery of the same, and collected the interest thereon from the makers through the H.S. Smith Investment Company of St. Joseph, but that subsequently, in the year 1922, she gave the renewal note as a gift to her daughter, Anna Morgan, the plaintiff in the present suit, thereafter collecting the interest thereon through the H.S. Smith Investment Company in St. Joseph for the plaintiff herein, Anna Morgan, who sent the renewal note to her mother, Mrs. Maier, from time to time, for the purposes of collection of interest. The record tends to show that Mrs. Maier was a resident of St Joseph during all the times herein mentioned and that her daughter, Anna Morgan, plaintiff herein, had no permanent place of residence, but was...