Mueller v. Becker

• Decision Date: 31 December 1914
• Docket Number: No. 16205.,16205.
• Citation: 172 S.W. 322
• Parties: MUELLER v. BECKER et al.
• Court: Missouri Supreme Court

172 S.W. 322

MUELLER v. BECKER et al.

No. 16205.

Supreme Court of Missouri, Division No. 1.

December 31, 1914.

1. MORTGAGES (§ 362) — FORECLOSURE — PURCHASE BY TRUSTEE.

A trustee under a deed of trust may divest himself of the title and all the responsibilities with which he is charged by a fair sale of the property in compliance with all the terms of the instrument, whether expressed upon its face or implied by law, so that no interest remains in him or in any one representing him or represented in any way by him, and he may then deal with the property as any other stranger to the title; but, if he repurchases, equity will jealously scrutinize the transaction to ascertain whether he has used the powers given him for the benefit of others to facilitate the acquisition of the property for himself.

2. MORTGAGES (§ 369) — FORECLOSURE — PURCHASE BY TRUSTEE — DISAFFIRMANCE.

The P. Company attached land owned by plaintiff, and in settlement of the attachment suit plaintiff and her husband executed a deed of trust naming as the trustee A., who was the attorney for the company in such suit. The trustee in 1896 sold the property for less than its probable value to the company, and in 1897 executed a deed to it. In 1898 a prior deed of trust was foreclosed and the land sold to the P. Company's local manager, who purchased for himself and A. Shortly thereafter, in response to a request for more time to remove from the property, the P. Company wrote plaintiff's husband that there was nothing it could do, as its local manager and A. were the owners of the land. Soon thereafter plaintiff and her husband surrendered possession. More than ten years after the second foreclosure sale, plaintiff sued to set aside both sales and to redeem. Held, that if plaintiff, because of the trust relation created by the deed of trust, had a right to disaffirm A.'s purchase, his purchase was only voidable at her election, and it was her duty, if she desired to avoid the transaction, to make her election within a reasonable time after she learned the facts, and hence her right to disaffirm his purchase was barred by her laches.

3. HUSBAND AND WIFE (§ 220) — ACTIONS — LACHES — COVERTURE AS EXCUSE.

Plaintiff's coverture did not excuse her delay in electing to avoid the trustee's purchase, since while Rev. St. 1909, § 8304, providing that a married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account, contract and be contracted with, sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued with or without her husband, does not repeal her statutory exemption from the operation of limitations, it carries with it all the incidents necessary to make the rights therein specified available, and with respect to all the matters therein specified she is to be deemed a feme sole.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Suit by Clara Mueller against Edwin J. Becker and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This suit was instituted August 20, 1908. The amended petition was filed at the October term, 1909. Its general object is to secure the cancellation of two trustees' deeds; one from Wash Adams, trustee, to Pabst Brewing Company, dated May 28, 1897, and the other from William S. McLeod, trustee, to Edwin J. Becker, dated June 3, 1898. It also seeks an accounting, to redeem from the deed of trust under which the McLeod sale was made, and for general relief, and offers to do and perform "whatever the court ought in equity to require." It also asks that plaintiff's title to said lands as against each of the defendants be confirmed and established, and for general relief. The defendants are Edwin J. Becker, William B. Conrod, John R. Wilson, A. L. Cooper, M. M. Sweetman, and Pabst Brewing Company. Becker answered, claiming title through the trustee's sale mentioned, and alleging that he had conveyed an undivided one-half of the land to the defendant Conrod, denying the other allegations of the petition, and pleading the ten-year statute of limitation of actions for the recovery of lands. Wilson, Sweetman, and Cooper answered, claiming under a deed of trust to the first named as trustee to secure the payment of notes aggregating $2,000 to Cooper and Sweetman, given before the institution of this suit for money loaned Becker. They also claim that to that extent they are innocent purchasers, without notice of any claim of plaintiff. Conrod answered, denying the allegations of the petition, and stating, among other things, that Becker, on June 21, 1901, conveyed an undivided one-half of the land to Adams for $1,000, and that Adams, on December 29, 1904, conveyed the same undivided half to him (Conrod) for $3,500; that he purchased in good faith without any knowledge of any adverse claim either legal or equitable; and that plaintiff had been lax in asserting her alleged right; and asked that the court ascertain, determine, and adjudge the title and interests of the parties, and for general relief. Issue was joined by replication, and the cause went to trial on these issues.

The principal facts in evidence are as follows:

August Mueller, who was the husband of plaintiff, was, on February 25, 1893, the owner of the 30-acre tract of land in controversy, and on that day his wife joined him in a deed of trust conveying it to W. D. McLeod, trustee, to secure payment of a note to James McKenzie, for $1,500, due five years from date, with 6 per cent. interest evidenced by semiannual coupons. In January, 1894, Mr. Mueller caused the land to be transferred through one Schwecten to the plaintiff, subject to the McKenzie deed of trust. On January 19, 1895, plaintiff and her husband joined in a deed of trust to Wash Adams, trustee, to secure a note of that date for $1,064, signed by both, and payable to Pabst Brewing Company one year after date. This represented a balance which Mr. Mueller owed the brewing company on settlement, and upon which a suit by attachment was pending at the time the deed of trust was given. Mr. Adams was, at the time, local attorney for the brewing company at Kansas City, and continued to be until after 1898. The defendant Becker was the manager of what was called the Kansas City branch of the company continuously from January 1, 1890, until June, 1900, and as such had general supervision of its collections and the enforcement of the payment of debts due it, taking the initiative unless specially instructed by the company. He does not remember informing the company of this transaction at any time before the sale under the Adams deed of trust, nor does he remember who got that deed from Mueller and wife. Such transactions were generally handled by the attorney, from whom he would get his information.

The land was sold by Adams, subject, of course, to the McLeod deed of trust, on May 16, 1896, and a certificate of purchase was made on the 18th to the brewing company as purchaser, in which its bid was recited as $500; and $450 was credited by Mr. Adams on the note as the net proceeds of the sale.

The evidence of the cash value of the land at the time of these transactions takes a wide range, but the estimate of Becker in a letter to his company, of $3,812.50, is probably fair.

On May 17, 1897, Mr. Adams wrote the Pabst Company:

"That pursuant to the powers vested in him as trustee in the deed of trust to secure the $1,064 note, he had on May 16, 1896, sold the land; that the same had been bid in by the local representative of the company in the name of the company; that he had thereupon executed a certificate of purchase; and that unless the land was sooner redeemed, he would at the expiration thereof execute a deed to the company, as grantee, and asking that the certificate of purchase and the original deed of trust be returned to him in order that he might execute a trustee's deed."

There was no answer to this, and there is no evidence that it was mailed or received. It does not appear that up to this time the home office of the company had any information that there had ever been any such thing as the Mueller deed of trust. On the 28th of May Mr. Adams made and acknowledged his trustee's deed to the company, and it was recorded the 1st day of June following. Then, on August 17, 1897, Becker wrote the company as follows:

                            "Kansas City, Mo., Aug. 17/97
                

"Pabst Brewing Co., Milwaukee, Wis. — Dear Sirs: We are the owners of a farm in this (Jackson) county of 30½ acres which came into our possession on a foreclosure of a second deed of trust given us by Aug. Mueller. The second deed of trust stands on our books $1,062.33. There is a first mortgage on this farm of $1,500.00. After getting title to the same I placed it in the hands of a real estate agent to sell, not naming any figure at that time. This agent was aware of what we had against it at the time the foreclosure was made. A few weeks ago he called and asked if we would take $2,700.00 for the farm. I refused the offer and asked him $125.00 per acre, which would be $3,812.50 for the farm. The agent was at the office this morning and made a proposition for one Aug. Sehstedt in which he asks us to rent him the place at $200 per year and give him the privilege at the expiration of three years to purchase the farm at $125.00 per acre. I informed him that I would lay his proposition before you and give him an answer as soon as I heard from you. The party of course expects by this proposition to receive the benefit of any increase in valuation on this farm. I do not think $125.00 per acre is too much at this time, whether it would increase in three years from now it is hard to say. If we should rent him the farm at $200.00 per year we would be obliged to take up the $1,500.00 deed of trust when it becomes due. The party holding the first deed of trust of $1,500.00...