Moss v. King

• Decision Date: 30 May 1908
• Parties: MOSS v. KING et al.
• Court: Missouri Supreme Court

111 S.W. 589

212 Mo. 578

MOSS v. KING et al.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. MORTGAGES — FORECLOSURE — REDEMPTION —STATUTORY PROVISIONS.

Under Rev. St. 1899, §§ 4343, 4344 (Ann. St. 1906, p. 2390), authorizing the redemption of land sold under the foreclosure of a deed of trust within one year from date of sale by paying the debt and interest and legal costs, on the grantor in the deed giving security for such payment, etc., the right of redemption, not existing in the absence of a statute, cannot be exercised unless the grantor gives immediate notice that he intends to give security and gives security within a reasonable time—that is, within the time within which one could obtain security if desirous and able to give security—and the time is not extended to enable the grantor to experiment in the market in trying to sell the premises for more than they brought at the foreclosure sale.

2. SAME.

The owner of the equity of redemption gave notice on the day of sale under the foreclosure of the deed of trust that he would give security to enable him to redeem. He had no purpose of redeeming unless he could effect a sale of the premises at better terms. Subsequently he agreed with the purchaser to allow him to take a deed after a specified time on the purchaser allowing the specified time in which to enable the owner to dispose of the premises. Prior to the expiration of the specified time, and 42 days after the foreclosure sale, the owner gave security. Held, that the security was not given within a reasonable time, and the owner could not exercise the right of redemption given by Rev. St. 1899, §§ 4343, 4344 (Ann. St. 1906, pp. 2390, 2391).

3. SAME.

After a sale on a foreclosure of a deed of trust, the trustee owes no duty to either party, except the mere ministerial duty of executing a deed, and he is under no obligation to assist the owner of the equity of redemption in organizing a corporation to take the property, and he does not violate a trust obligation by organizing a corporation with the view of buying the premises from the purchaser at the sale.

Appeal from Circuit Court, Johnson County; Nick M. Bradley, Judge.

Action by C. P. Moss against Edward King and others. From a judgment for plaintiff, defendant William Allbritian, executor of Harriott L. Jameson, deceased, appeals. Affirmed.

Webster, Gilmer & Crowley, for appellant. J. W. Suddath, for respondent.

VALLIANT, P. J.

Plaintiff, as assignee of the purchasers at a foreclosure sale, brings this suit to require the trustee to execute a deed conveying the land to him in accordance with the terms of the sale. The land in suit is a tract of about four or five acres, on which is situated a flour mill, in Johnson county. It was incumbered with a deed of trust to secure three notes aggregating $1,186, principal. Defendant Allbritian, as executor of the will of Harriott L. Jameson deceased, was the owner of the equity of redemption. Defendant King was the trustee in the deed of trust. The debt being due and unpaid, the trustee, after due notice, offered the property at public sale to the highest bidder for cash, in accordance with the terms of the deed of trust, and it was struck off to A. W. Burke and B. B. Mac-Macken for the sum of $1,259.21, which was the highest bid. The date of the trustee's sale was November 11, 1904. Immediately after the sale, defendant Allbritian gave notice to the trustee and to Burke and MacMacken that he would give the bond and security allowed by Rev. St. 1899, §§ 4343, 4344 (Ann. St. 1906, pp. 2390, 2391), to redeem the property within one year. After receiving that notice, King, the trustee, declined to give the purchasers a deed, but gave them a certificate declaring that he had sold them the property at the price named and would make them a deed unless the defendant Allbritian should within a reasonable time give the bond and security promised. So the matter stood on December 14th, when, Allbritian having not then given the bond, Burke and MacMacken had some talk with him about it, whereupon they came to an understanding or agreement which was evidenced in the form of a letter from Allbritian to Burke and MacMacken dated December 14, 1904, the body of which was as follows: "Gentlemen: This is to witness that unless I succeed in selling or trading the Kingsville Mill Property by Dec. 25, 1904, the title thereto will be conveyed to you either by Miss Bell, the present holder, or by Mr. Ed. King, the trustee in the deed of trust on said property. If I succeed in closing a deal in such way as to pay off your claim and need a reasonable time in which to consummate the deal, I shall expect reasonable treatment on that line as heretofore talked." On the next day, December 15th, Burke and MacMacken sold and transferred their interest evidenced by the certificate of purchase to the plaintiff Moss by a writing to that effect indorsed on the certificate. The consideration for this assignment was $1,225 paid them in cash. The negotiations that resulted in this assignment were conducted by King acting for Moss. When Burke and MacMacken delivered the assigned certificate to King for Moss, they also delivered to him the letter above mentioned from Allbritian to them. On December 23, 1904, Allbritian executed a bond to redeem as if in compliance with the statute above mentioned, and it was filed on that day in the office of the circuit clerk. After December 25th had passed, Moss demanded a deed from the trustee; but he declined to execute it because Allbritian had given the bond and insisted that he had the right to redeem within the year. Moss then brought this suit to compel the trustee to execute the deed.

The answer of Allbritian states that at the time of the foreclosure sale Burke and Mac-Macken were the owners of the entire debt covered by the deed of trust; "that within the time allowed by law for filing said bond this defendant and the said Burke and Mac-Macken entered into an oral agreement whereby this defendant agreed that, if said Burke and MacMacken would allow him until the 25th day of December, 1904, in which to dispose of said property, or to get the same into contract for its disposition, he would allow them to take their deed from the trustee and not exercise his right of filing said bond in the event he should fail to dispose of said property or make a contract for the disposal thereof within that period" Then the answer goes on to say that that agreement was afterwards reduced to writing (by which, we understand, is meant the letter of December 14th, above mentioned), and that King knew it, but that he, scheming to get the property for less than its value, bought the interest of Burke and MacMacken, concealing the fact from defendant, and took the assignment in the name of Moss to hide his own interest, and then busied himself trying to organize a corporation that would take the property off his hands at a large price, all this without the knowledge of the defendant, who, after the agreement of December 14th, had tried to form a company to purchase...