New England Loan & Trust Co. v. Browne

• Decision Date: 12 June 1900
• Court: Missouri Supreme Court
• Parties: NEW ENGLAND LOAN & TRUST CO. v. BROWNE et al.

57 S.W. 760

157 Mo. 116

NEW ENGLAND LOAN & TRUST CO. v. BROWNE et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

TRIAL — FINDINGS — RESPONSIVENESS TO ISSUES — PLEADINGS — ISSUES AND PROOFS — PRINCIPAL AND AGENT — EVIDENCE OF AGENCY.

1. Where in ejectment founded on title under a trustee's deed defendant alleges in a cross action that there was no breach of condition of the trust deed, and hence that the deed by the trustee was invalid, a finding that one as agent of the plaintiff had received payments on the note secured by the trust deed is not responsive to the issues.

2. Where plaintiff in ejectment proved prima facie by the recitals in a trustee's deed under which it claims that the condition in the trust deed was broken, and defendant avers in his answer that the condition was not broken, he cannot prove on the trial a new agreement whereby the time for performance of the obligation contained in the trust deed was extended.

3. S., by contract for the sale of land to defendant, agreed, if defendant should desire, to procure an extension of an incumbrance thereon in favor of plaintiff, represented by a note with interest coupons, executed by S.'s partner and his wife, and secured by a trust deed, which incumbrance defendant had assumed. Defendant made monthly payments to S., which, by oral agreement, he was to apply on the interest of the incumbrance assumed, and remainder on the principal of the purchase price due to S. Held, that the facts that S. agreed to procure the extension for plaintiff, and that he received the payments of interest on the bond for plaintiff, did not constitute him plaintiff's agent, so that defendant would be protected for payments made to him, and not turned over to plaintiff.

Appeal from circuit court, Jackson county; James H. Slover, Judge.

Action by the New England Loan & Trust Company against W. H. Browne and others for ejectment. From a finding and judgment for defendant, plaintiff appeals. Reversed.

Botsford, Deatherage & Young, for appellant. Byron Sherry and Kagv & Bremermann, for respondent.

VALLIANT, J.

This is an action of ejectment for two lots in Kansas city. Plaintiff's title is derived through a deed of trust executed by Mina Sexton and Warren Sexton, her husband, to John C. Hall, trustee, with power to sell, to secure a bond for $1,800 and interest coupons made by them to the plaintiff, and the trustee's deed foreclosing the deed of trust. The defendant set up in his answer what was intended to be an equitable cross action attacking the validity of the trustee's sale, and the case was tried on that issue. This answer states that the plaintiff's title is the deed of trust and the trustee's deed, and avers that the latter is void because by the terms of the deed of trust the trustee was only authorized to sell in case the grantors were in some default as to its conditions, and "that at the time of the advertising and selling of said premises by said trustee the grantors in said trust deed were not in default of the terms and conditions of said trust deed, or any part or portion of the terms and conditions thereof." That is all there is of the affirmative defense. Upon the trial the plaintiff introduced in evidence the deed of trust dated May, 1889, the $1,800 bond, due June 1, 1894, and past-due interest coupons, — which deed contained, among other things, a clause to the effect that any recital in the deed to be made by the trustees thereunder should be taken prima facie as true; a deed dated 28th March, 1896, from the trustee to Gilbert, reciting default in payment of the bond; a request by the holder to foreclose, advertisement and sale according to the terms of the deed of trust, and the purchase by Gilbert at the sale; an affidavit showing publication of notice; then a deed from Gilbert to the plaintiff, dated March 30, 1896; then certain deeds showing defendant's title derived from the same source, but junior to plaintiff's; then testimony showing the monthly rental value of the property, — and rested. Defendant introduced a written contract between E. P. Sexton and himself and wife dated September, 1891, whereby Sexton agreed to sell to defendant's wife the land in suit for $2,200, for which sum defendant and his wife executed their promissory note, and they also assumed and agreed to pay the $1,800 bond secured by the plaintiff's deed of trust; making the price of the land to defendant and wife $4,000 principal. The $2,200 note was payable in monthly installments of $25 each, and secured by deed of trust on the property. At the time of executing this contract Sexton executed his warranty deed conveying the land to defendant's wife, and they executed their note for the $2,200 and deed of trust; and all these documents, as provided by the terms of the written contract, were deposited in a bank in escrow to be delivered when Sexton should obtain a title by foreclosing an intervening incumbrance, which he agreed to do, and which he afterwards did, and the documents were delivered respectively. In the written contract Sexton agreed that, if defendant so desired, he would procure the plaintiff's $1,800 incumbrance extended for five years without expense. The whole force of the defense centered in the proposition that Sexton was the agent of the plaintiff, and had authority to make that agreement for extension. The testimony of defendant tended to show that, after he purchased from Sexton, the plaintiff had notice of the fact, and, when the interest on plaintiff's debt came due, notice thereof was sent to defendant Browne. Browne paid his $25 a month to Sexton, and supposed Sexton was paying the interest to plaintiff; and in point of fact Sexton did so up to about November, 1894, after which he paid nothing, although defendant Browne continued to pay him the monthly installments up to November 1, 1895. Browne testified that it was understood between him and Sexton that out of the monthly installments Sexton would first pay the interest falling due on plaintiff's debt, and apply the balance on the $2,200 note. But the written agreement contains nothing of that kind. It calls for $25 a month to be applied on the $2,200 note, and defendant to pay the plaintiff's debt. Defendant testified that in May, 1894, he received a letter from plaintiff "notifying me that the note of $1,800 would soon be due, and to call in and make some arrangement for extending it; pay a little on the note, and they would be satisfied to extend it. I immediately took the letter to E. P. Sexton, and showed him the letter, and I says, `You remember your agreement?" He says: `Yes; I will fix that all right. I will go right up and attend to it.' And that is the last I heard of it until I received this letter of February...