Nations v. Pulse

• Decision Date: 27 May 1903
• Citation: 175 Mo. 86,74 S.W. 1012
• Parties: NATIONS v. PULSE et al.
• Court: Missouri Supreme Court

74 S.W. 1012

175 Mo. 86.

NATIONS v. PULSE et al.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

DEED OF TRUST — FORECLOSURE — SETTING ASIDE—FRAUD—CONSPIRACY—EXTENSION OF TIME—PUBLICATION—NOTICE—EVIDENCE.

1. In an action by one co-maker of a deed of trust to set aside a sale made thereunder, the evidence examined, and held not to show an extension of time, claimed by plaintiff to have been granted by the payee.

2. Where a published notice of foreclosure under a trust deed complied in all respects with the terms thereof, and appeared on the editorial page among other legal notices, the fact that one of the co-makers of the note and deed and the assignee of the same told the publisher to put the notice "in any old place," that it was "a mere matter of form," etc., did not avoid the foreclosure proceedings as against the other co-maker.

3. N. and P. were partners, and executed a note in part payment for land, securing the same by a deed of trust on the land. At the time the balance became due on the note both N. and P. were insolvent, and shortly after N. left the state, was taken sick, and never did or attempted to do anything in the matter. P. was also a member of another firm, and advised a creditor of the latter to purchase the note and deed of trust to protect his claim, which he did, and, on failure to collect the balance due on the note, foreclosed the deed by proceedings in all respects regular and in conformity therewith, and purchased the land at the sale. Before assigning the note, the payee thereof advised N. and P. that he would accept $1,000 in money or lumber, and wait for the balance, and the evidence showed that there was at the time timber on the land worth about $1,500. Held, that no fraud toward N. could be predicated on the failure of P. to protect the land by turning over such timber to the payee, and his failure to do so was not ground for setting the foreclosure proceedings aside.

4. P. was under no obligation to advise N. of the assignment of the note and deed of trust and the commencement of foreclosure proceedings, and no fraud could be predicated on his failure to do so.

Appeal from Circuit Court, Stoddard County; Frank R. Dearing, Judge.

Action by John W. Nations against O. L. Pulse and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Wilson Cramer, for appellants. W. H. Miller, for respondent.

MARSHALL, J.

This is a bill in equity to set aside the sale under a deed of trust made on March 2, 1891, by the plaintiff, John W. Nations, and the defendant O. L. Pulse, to Lansing Staats, trustee, to secure to O. C. Frisbee a note for $10,000, and covering all of sections 9, 10, and 15 of township 27, range 12, in Stoddard county. The case made is this: On March 2, 1891, John W. Nations and O. L. Pulse were partners, engaged in the sawmill business at Bell City, Stoddard county, Mo. They had both resided in Indiana, and after the partnership was formed Nations continued to live in Indiana, making occasional trips to Bell City, while Pulse moved to Bell City, and resided there. On said March 2, 1891, they purchased from O. C. Frisbee the land in question here, being sections 9, 10, and 15 in township 27, range 12, for an agreed price of $12,000, and paid thereon the sum of $2,000 with partnership funds, and gave their note, secured by deed of trust on the land, for the balance of $10,000. O. L. Pulse thereafter conveyed to his brother, W. C. Pulse, an undivided half interest in his part of the land, and later, in December, 1893, John W. Nations sold his interest in the business, including the sawmill and other personal property, to George H. Fleetwood. This dissolved the firm of Nations & Pulse, and thereupon O. L. Pulse and George L. Fleetwood, entered into partnership in the sawmill business, and continued cutting timber on the land; Fleetwood cutting for Nations at so much a thousand to pay the $2,000 he had agreed to pay Nations for his half interest in the mill. Nations did not sell his half interest in the land. Thus the matter ran along until 1896, at which time the indebtedness to Frisbee on the $10,000 note had been reduced to $2,848.44. Frisbee demanded payment thereof from both Pulse and Nations, but offered to take $1,000 in cash or in lumber, and to wait for the balance. Nations, who was then in Bell City, and Pulse consulted about the situation. Neither had any money. Both were insolvent, and unable to get any money with which to pay Frisbee. Thereupon Nations left Bell City, and returned to his home in Indiana, without making any arrangement whatever to meet the obligation to Frisbee. Shortly thereafter Nations was taken sick, and he never did or attempted to do anything concerning the matter until he brought this suit. In addition to his timber business in Missouri and his partnership with Nations and subsequently with Fleetwood, O. L. Pulse was engaged in business in Indiana, in partnership with his brother, W. C. Pulse. The latter had a brother-in-law named C. K. McCollough, who was engaged in the banking business in Anderson, Ind. The firm of O. L. & W. C. Pulse owed C. K. McCollough the sum of $1,800. They urged McCollough to buy the Frisbee claim, and thus protect the claim of $1,800 aforesaid. McCollough did so, and paid Frisbee the balance due on his note of $2,848.44, and took an assignment of the note and deed of trust. Thereupon he sent the note and deed of trust to an attorney in Stoddard county for collection. The attorney demanded payment thereof from O. L. Pulse, and, failing to collect it, he procured the trustee to advertise the property for sale under the deed of trust according to the terms thereof. The sale was held at the courthouse at Bloomfield, the county seat, and C. K. McCollough became the purchaser for the sum of $500. This sale was in all respects in conformity to the terms of the deed of trust, and was open and free, and there is nothing in this record which impeaches the regularity or legality. After the purchase thereof, McCollough sold sections 10 and 15 to James C. Pulse for $6,400 and thereafter James C. Pulse sold the same to Lemuel Boone Sexton for $7,000. There is nothing in this record that in any manner casts any doubt about the bona fides of these sales. McCollough retained the title to section 9, and leased it to O. L. & W. C. Pulse. Thus the matters stood until November 23, 1897, when John W. Nations instituted this suit against O. L. Pulse, W. C. Pulse, James C. Pulse, C. K. McCollough, and Lemuel Boone Sexton.

The gist of the petition is that the defendants "combined, conspired, and colluded together for the purpose of defrauding this plaintiff out of said lands, and, to procure the title thereto, did, on the 8th day of May, 1896, cause the same to be sold under and by virtue of said deed of trust by the said Lansing Staats, trustee, and at said sale C. K. McCollough, who in the meantime had, through O. L. Pulse, become the assignee of the notes and deed of trust hereinbefore mentioned, became the purchaser of all said lands therein described for the sum and price of five hundred dollars. Plaintiff states that said land was then and now is reasonably worth the sum of twelve thousand dollars, and that the said O. L. Pulse fraudulently and willfully failed to advise the plaintiff of the sale of said lands, or of the desire of the payee or assignee of said...