Ottenad v. Mount Hope Cemetery & Mausoleum Co.
| Decision Date | 07 December 1943 |
| Docket Number | 26444 |
| Citation | 176 S.W.2d 62 |
| Parties | BERNARD L. OTTENAD, Appellant, v. MOUNT HOPE CEMETERY AND MAUSOLEUM COMPANY, a corporation, and B.L. OTTENAD, M. OTTENAD, and ERWIN A. KOEHLER, Constituting the last Board of Directors of B.L. OTTENAD AND COMPANY, a corporation, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County. Hon. John A. Witthaus Judge.
AFFIRMED.
Sutton COMMISSIONER.
This is a suit in equity for the foreclosure of a deed of trust.
The deed of trust was executed on December 15, 1927, by B. L. Ottenad and Company, a corporation, conveying-to Gustav Sauter as trustee a triangular tract of land containing about an acre and being a portion of the Mount Hope Cemetery situate in St. Louis County. The deed of trust was given to secure the payment of two promissory notes, each for $ l,OOO, one maturing December 15, 1928, and the other maturing December 15, 1929, and both bearing interest at the rate of six per cent per annum from date. B. L. Ottenad and Company was the owner of the tract at the time the deed of trust and notes were executed. The notes were made payable to Alois Sauter from whom L. M. Ottenad and Company purchased the tract.
Prior to the commencement of this suit B. L. Ottenad and Company had been dissolved as a corporation. Defendants B. L. Ottenad, M. Ottenad, and Erwin A. Koehler constitute the last board of directors of the company.
In 1936, at the request of William M. Hideout, who was then the owner of the promissory notes, the deed of trust was foreclosed under a purported power of sale contained therein. The Metropolitan Properties Company was the owner of the tract at that time. Fred S. King became the ostensible purchaser of the tract at the foreclosure sale, and on December 5, 1936, received the trustee's deed therefor. He subsequently executed several deeds of trust on the tract. Later the purchaser commenced the erection of a filling station on the tract.
Though on foreclosure of the deed of trust the trustee's deed was made to King, Rideout appears to have been the real purchaser.
Plaintiff testified that he agreed with Hideout prior to the judgment of July 21st, that if the case went against him he would help him out, and that he bought the notes because he was morally responsible to Rideout; that Rideout took the notes originally on his account; that he promised Sauter if he would take the notes as part purchase money he would see that the notes were paid, and that he got Hideout to take the notes to give Sauter his money; that he was present in court when the case was tried, and knew what the judgment was in that case at the time he took the notes from Rideout; that he was the sole owner of the stock of B. L. Ottenad and Company except stock issued to qualify directors.
On October 1, 1937, the Metropolitan Properties Company commenced a suit against William M. Rideout, Fred S. King, and others. In that suit the petition alleged that the tract was restricted to use for cemetery purposes; that the power of sale in the trustee's deed was void, and that no sale could be had without the authority of a court in equity, and prayed that the trustee's deed and subsequent deeds of trust be set aside, and that the erection of the filling station upon the tract be enjoined. Defendants defended the case on the theory that the power of sale in the deed of trust was valid and that the foreclosure thereunder was legal and authorized. None of the defendants asked for affirmative relief.
That suit resulted in a judgment for plaintiff on July 21, 1938, setting aside the trustee's deed and the subsequent deeds of trust, the court holding that the power of sale in the deed of trust Under which the foreclosure sale was made was void.
From this judgment defendants were granted an appeal to the Supreme Court. The appeal was dismissed by the Supreme Court for failure to comply with the rules. The mandate went down on September 22, 1940. In 1938, after the judgment of July 21st was rendered, plaintiff acquired the notes in suit in the present case from William M. Rideout. On October 26, 1939, defendant Mount Hope Cemetery and Mausoleum Company, a corporation, acquired title to the tract.
The present suit was commenced on July 2, 1941. The petition prays that the deed of trust be foreclosed and that the tract be sold for the payment of the notes secured by the deed of trust. On September 8, 1941, defendant Mount Hope Cemetery and Mausoleum Company filed its answer, denying generally the allegations of the petition. On January 3, 1942, defendant Mount Hope Cemetery and Mausoleum Company by leave of court filed its separate amended answer, wherein it denied specifically certain allegations of the petition and set up by way of affirmative defense the statute of limitations. The remaining defendants filed answers admitting their capacity, and denying generally the other allegations of the petition.
On January 5, 1942, plaintiff filed a motion to strike from the separate amended answer of the defendant the plea of the statute of limitations. This motion was overruled.
The trial resulted in a judgment for defendants. Plaintiff appeals.
The case was tried below solely on the issue as to whether or not plaintiff's action was barred by the statute of limitations. One of the notes secured by the deed of trust matured on December 15, 1928, and the other on December 15, 1929. The statutory period of limitation as to the latter note therefore lapsed on December 15, 1939. This suit was commenced on July 2, 1941, more than a year and six months after the statutory period of limitation lapsed. The court below accordingly ruled that the action was barred by the statute of limitations.
Plaintiff contends here that the pendency of the suit to set aside the trustee's deed and subsequent deeds of trust tolled the statute, and that therefore the present action is not barred.
Section 1017, R.S. 1939, Mo.R.S.A., provides that no suit, action or proceeding under power, of sale to foreclose any mortgage or deed of trust, to secure any obligation to pay money on property, shall be had or maintained after such obligation has been barred. Therefore, if the notes secured by the deed of trust are barred so is the deed of trust.
Plaintiff relies on section 1026, which provides that if any action shall have been commenced within the period of limitation and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, the plaintiff may commence a new action within one year after such nonsuit suffered or such judgment arrested or reversed.
It is obvious that this section has no application here. There was no nonsuit suffered in the other pending action. There was no arrest of the judgment, and the judgment was not reversed on appeal or error. Besides, the plaintiff in this case was not the plaintiff in that case. He was a defendant in that case asking no affirmative relief.
Plaintiff also relies on section 1029, which provides that whenever the commencement of any suit shall be stayed by an injunction of any court or officer authorized to grant the same, the time during which such injunction shall be enforced...
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