Northcutt v. Fine

• Decision Date: 01 December 1931
• Docket Number: 29627
• Citation: 44 S.W.2d 125
• Parties: NORTHCUTT v. FINE et al
• Court: Missouri Supreme Court

44 S.W.2d 125

NORTHCUTT v. FINE et al

No. 29627

Supreme Court of Missouri, Second Division

December 1, 1931

E. H Schwarzenbach, of St. Louis, for appellant.

OPINION

WESTHUES, C.

Plaintiff filed a petition in the circuit court in the city of St. Louis asking the court to set aside and to declare null and void a trustee's deed and a certain foreclosure sale held in the city of St. Louis, Mo., on the 30th day of July, 1927. The sale was held under a third deed of trust. The petition also prayed the court to revest the title in plaintiff and for such other relief as the court may deem meet and proper.

At the trial the defendants did not offer to introduce any evidence. The court entered a judgment in favor of the defendants. From this judgment plaintiff appeals.

We find in plaintiff's brief a fair statement of the facts as revealed by plaintiff's evidence. Omitting those parts that we deem conclusions and argument, the statement is as follows:

'Plaintiff was in the grocery business in Bonne Terre, Missouri. Defendant Fine, in March, 1927, and for a considerable time theretofore, had been engaged in the real estate business in the City of St. Louis, doing business under the name of Harry M. Fine Realty Co.

'Plaintiff noticed an advertisement in one of the St. Louis daily papers advertising for sale a certain piece of property on South Broadway in St. Louis, in the early part of May, 1927.

'Plaintiff owned four merchandise certificates of the alleged par value of $ 1,000.00 each and desired to trade these for some real estate in St. Louis. He answered the newspaper advertisement and received in reply a letter from defendant Fine advising that the plaintiff's letter answering the advertisement had been referred to him (Fine) by one M. Ruban, a client of Fine, and asking the plaintiff to come to his (Fine's) office.

'In response to defendant's letter, plaintiff called at Fine's office and was sent by defendant Fine to inspect the property on South Broadway in company with a man from Fine's office. The deal for the South Broadway property fell through for the reason, as testified to by the plaintiff, that the owner, after inspecting the merchandise represented by plaintiff's merchandise certificates, refused to trade the property for it. * * * Upon the return of the plaintiff to defendant Fine's office, defendant said, 'We have another piece of property out on St. Louis avenue; will you go and look at it?' Plaintiff agreed and was driven by defendant Fine and another man from the office to look at a flat at 4370 St. Louis avenue. An agreement for exchange was finally formulated and a written contract entered into on May 16, 1927, by and between William Seltzer, as party of the first part, and Celestia Northcutt by James A. Northcutt, as party of the second part, reciting that the party of the first part had, on the date of the instrument, sold the property and obligated himself to convey the property to the party of the second part or to whomsoever she might in writing direct. According to the contract for exchange, the deal was to be consummated at the office of Harry M. Fine on May 18, 1927. At the time of the execution of this contract for exchange, defendant Fine told plaintiff that the exchange was being agreed to subject to the approval of the owner; that the owner was out of town and that he (Fine) would have to get in touch with the owner and would then let the plaintiff know.

'As a matter of fact, the exchange was carried out on the date set, viz., May 18, 1927. The plaintiff on that date delivering to defendant Fine the four (4) merchandise certificates and a check for $ 360.00, payable to defendant Fine as and for his commissions, which check was duly cashed, and executed a deed of trust for $ 375.00 securing promissory notes payable to defendant Catherine Kuhn, cestui que trustee of said deed of trust, a stenographer employed by defendant Fine, in his office, and defendant Fine, trustee.

'In exchange plaintiff received a warranty deed reciting and signed by Meyer Ruban and Celia Ruban, his wife, as grantors, and himself, as grantee, and further reciting that the property was subject to a first deed of trust in the sum of $ 3,000.00, then of record, and also subject to an unpaid balance of a second deed of trust which originally was for the sum of $ 2,400.00, but had since been reduced by cash payments to the sum of $ 2,340.00. * * *

'Plaintiff testified that at the time the contract for exchange was entered into the defendant Fine represented to him that it was not necessary to secure a certificate of title as to the property involved, in so much as he (Fine) was familiar with the title and could assure plaintiff that the title was as it was being represented to him (plaintiff) to be and that none of the notes secured by the first and second deeds of trust were at that time due and payable.

'At the same time defendant Fine, according to plaintiff's testimony, assured plaintiff that he (Fine) would take charge of the property being sold, collect the rents and take care of repairs, and that the proceeds of the property would be sufficient to take care of the payment of the various notes under the deed of trust and all other expenses, except for a balance of about $ 10.00 per month, which plaintiff would have to pay in cash.

'Within a few days after May 18, 1927, plaintiff was advised by letter to pay a note for $ 90.00, secured by the first deed of trust, which had matured on May 15th, 1927, in which letter defendant Fine stated: 'Regarding the interest note for the sum of $ 90.00, which was due May 15th, 1927, which was after the date you bought this property, will state that this is interest on the first deed of trust which you owe.' * * *

'Plaintiff, according to his testimony, thereupon called at defendant Fine's office, told Fine that he was not liable for the payment of the $ 90.00 note, inasmuchas it had matured prior to his purchase of the property and that he (Fine) had told him (plaintiff) that all notes then due under the first and second deeds of trust had been paid. At that time one of the notes under the third deed of trust had become due and plaintiff offered to pay the sum of $ 10.00, which, according to his testimony, Fine had advised him would be all that would be necessary for plaintiff to pay in cash in order to pay all expenses in connection with the property. This defendant Fine refused to accept.

'Defendant Fine then caused to be inserted in the newspaper a notice of a foreclosure sale of the property to be held on July 30, 1927, reciting that the sale was under the third deed of trust, 'which conveyance was made to the undersigned in trust, to secure the payment of certain notes in said deed specified; and, whereas, one monthly note is now past due and remains unpaid; and, whereas, one interest note and one monthly note under prior deeds of trust have been paid by the holder of the within deeds of trust and notes, who has not been reimbursed for such outlay; now, therefore, at the request of the legal holder of said note, and in pursuance of the conditions in said deed of trust, the undersigned, trustee, will sell the property above described at public vendue, to the highest bidder for cash.'

'The notice is signed, 'Harry M. Fine, Trustee.'

'Defendant Fine admitted in his testimony at the trial that the notes secured by the third deed of trust under which the foreclosure sale was had, though made payable to Catherine Kuhn, an employee in his office, were in fact the property of himself.

'The sale was held on July 30, 1927. Immediately prior to the sale plaintiff, through his attorney, gave notice to those assembled for the sale to the effect that plaintiff was claiming the defendant Fine had no right to make such sale and that the sale would be contested in the courts.

'At the sale there was only one bid, that of $ 50.00 made by the aforementioned William Seltzer, who had desk space in defendant Fine's office, and who...