Peters v. Kirkwood Federal Savings & Loan Ass'n
Citation | 136 S.W.2d 369 |
Decision Date | 06 February 1940 |
Docket Number | No. 25386.,25386. |
Court | Court of Appeal of Missouri (US) |
Parties | PETERS et ux. v. KIRKWOOD FEDERAL SAVINGS & LOAN ASS'N et al. |
Appeal from Circuit Court, St. Louis County, Division No. 4; John J. Wolfe, Judge.
"Not to be reported in State Reports."
Suit in equity by George M. Peters and wife against the Kirkwood Federal Savings & Loan Association and another to set aside a foreclosure sale under a trust deed, require accounting for sums paid to named defendant or its predecessor, and determine amount of plaintiff's indebtedness to such defendant, which filed a cross-bill for amount found due on accounting and possession of mortgaged premises. Decree for defendants, and plaintiffs appealed to the Supreme Court, which transferred the case to the Court of Appeals, Mo.Sup., 130 S.W.2d 507.
Affirmed.
Jesse L. England, of Clayton, for appellants.
Albert Chandler, of St. Louis, and H. Ziercher, of Clayton, for respondents.
The appeal in this case was taken to the Supreme Court, and afterwards transferred to this court because that court determined it was without jurisdiction. For a statement of the facts reference is now made to the opinion of the Supreme Court as found reported in the case of Peters et ux v. Kirkwood Federal Savings and Loan Ass'n et al., 130 S.W.2d 507, with the following addition thereto:
Plaintiffs' petition, in addition to seeking to set aside a foreclosure sale, also prayed the court that defendant Association be required to account to plaintiffs for all sums of money paid to it or its predecessor on said bond transactions and that the Court find, determine and adjudge the amount, if any, the plaintiffs are indebted by reason of said bond transactions, and enter such order, judgment and decree in the premises as will permit the plaintiffs to comply therewith to the end that they may not be wrongfully deprived of their property rights, but may pay the sum, if any, the Court may find due said corporate defendant within a time to be fixed by the Court, and that the Court award to the plaintiffs such other and further equitable relief in the premises as to the Court may seem meet and proper.
The defendant Association filed an answer in which it joined in plaintiffs' prayer for an accounting, and submitted therewith an itemized account of its receipts and disbursements, and by way of cross-bill asked judgment for the amount found due on such accounting, and that the court fix a time for plaintiffs to pay the same; that if so paid said defendant shall satisfy the obligations it holds and release the properties thereby encumbered, and in default of such payment an order and decree that plaintiffs vacate and surrender possession, and that a writ of possession issue to that end, and for such other and further relief as may be meet.
To this answer plaintiffs filed no reply.
The account as rendered by the defendant association was full and complete. It was an itemization of all receipts and disbursements, made up from its books of account. Not a single item therein was challenged by plaintiffs. It appears that in September 1929, plaintiffs were unable to meet their monthly payments, and an effort was made to refinance the two loans so that the total monthly payment would be $77.50 instead of $151.00, but it was discovered that there was a judgment against George M. Peters and the plan of readjusting or refinancing at that time was abandoned, but thereafter and until March 8, 1932, the defendant Association accepted monthly payments of $77.50, which were pro-rated between the two loans, and its account showed plaintiffs delinquent each month for the difference between $77.50 and $151, the monthly payment originally provided for. Plaintiff George M. Peters says that his understanding was that under the readjustment plan, which was abandoned as above stated, the $77.50 was to be treated as a full payment and that the loans would not be delinquent as long as he kept up those monthly payments. Whether such an understanding was justified or not, does not make a particle of difference, because on March 8, 1932, the loans were refinanced by a loan extension agreement signed by the plaintiffs, by which the total amount then due on the two loans was fixed at $6,300, and the future payments were fixed at $65.10 per month....
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