Philips v. Bailey

• Decision Date: 31 October 1884
• Citation: 82 Mo. 639
• Parties: PHILIPS v. BAILEY et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 639

PHILIPS

v.BAILEY et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Comingo & Slover for appellants.

(1) The evidence excluded by the court was both relevant and competent. It tended to rebut any inference of fraud as alleged that could possibly be made from other facts given in evidence. (2) A court of equity will not relieve against the stipulations or covenants contained in a contract except on the ground of fraud or mistake in consequence of which such stipulations or covenants are entered into. Sloat v. Bean, 47 Ia. 60; Malcolm v. Allen, 49 N. Y. 448; Bennet v. Stevenson, 53 N. Y. 508; Heath v. Hall, 60 Ill. 344; Brownlee v. Arnold, 60 Mo. 79; Wapples v. Jones, 62 Mo. 440; Noell v. Gaines, 68 Mo. 651. (3) The covenant to pay the taxes, and the stipulation that in default of so doing the whole debt should become due, is valid. Stanclift v. Norton, 11 Kas. 218, 222. And so is a covenant to insure. 1 Jones on Mort., § 78. Stipulations for the payment of a reasonable fee of an attorney or solicitor, is valid and binding. Rice v. Cribb, 12 Wis. 179, 185; Hitchcock v. Mossick, 15 Wis. 522; Pierce v. Kneeland, 16 Wis. 672, 678; Robinson v. Loomis,51 Pa. St. 78; Weatherby v. Smith, 30 Ia. 131; Clawson v. Munson, 55 Ill. 394.

Gates & Wallace for respondent.

There was no default on respondent's part at the time of the sale. The payment of the January interest to W. H. Bunn was a valid payment. Brooks v. Jameson, 55 Mo. 505. Where there is a default in the payment of interest, and by the terms of the deed of trust the principal then becomes due, it becomes due only for the purposes of the sale, and when the interest is paid or tendered, then the principal is no longer due. Morgan v. Martin, 32 Mo. 438; Mason v. Barnard, 36 Mo. 384; Whalen v. Reiley, 61 Mo. 565. The respondent was not in default either as to attorney's fees or the taxes. Thornton v. Bank, 71 Mo. 232; Eitelgeorge v. Association, 69 Mo. 52. Property worth not less than $1,600, was sold en masse for only $560.50. This alone would be sufficient to set aside the sale. Vail v. Jacobs, 62 Mo. 130; Stoffle v. Schroeder, 62 Mo. 147.

RAY, J.

Respondent filed this bill in equity in the circuit court of Jackson county, Missouri, to set aside a certain sale and deed executed thereunder by appellant, Bailey, to his co-appellant, the First National Bank of Pleasant Hill, Missouri.

He alleges therein, in substance that he is the owner of the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of section 33, township 47, range 30, Jackson county; that on July 2, 1877, he and his wife executed a deed of trust, conveying said land to one Powell, as trustee, to secure the payment of a bond in the trust deed described and the interest coupons thereto attached; that said bond was for $600 payable five years after date, bore interest at the rate of nine per cent, payable semi-annually; * * that said Bailey is the sheriff of Jackson county and was authorized by said trust deed to act as trustee in case of the absence from the State of Powell the trustee therein; that the National Bank of Pleasant Hill, his co-defendant, is a corporation organized under the laws of the United States; that he negotiated the loan evidenced by said bond with one Bunn, of Warrensburg, Missouri; that he received from him, the money so borrowed; that he delivered the deed of trust and said bond to him; that he paid the interest coupons, as they became due, to him, and that at the time of the sale, under the deed of trust, of which he complains, he had paid all interest then due on said bond, and all taxes due on the bond described in the deed of trust; that the First National Bank of Pleasant Hill, one of the defendants, and one Theodore Stanley, conspiring to cheat and defraud him out of his said property, claimed to have purchased said bond and coupons; and without his knowledge, and while he was temporarily absent from this State, caused his said property to be advertised for sale, by defendant Bailey, as trustee, under said deed of trust; that the day of sale was fixed for the 25th of January, 1880; that in order to avoid litigation, he, plaintiff, before said sale, tendered to said Bailey all the costs of advertising said sale, and all trustee's legal charges, and all interest then due on the coupons attached to said bond, that the said bank and said Stanley claimed to be due, although he had paid the same to said Bunn; that defendant Bailey, under the direction of said Stanley and said bank, refused to receive the amount thus tendered, and demanded that said bond and all interest then due, and the costs of advertising, and the trustee's charges and attorney's fee of $50 be then paid, and that upon plaintiff's refusing to comply with the demand, said Bailey proceeded to sell under said deed of trust, and that said bank was the only bidder, and became the purchaser at said sale; and that plaintiff, at the time of and before the sale, gave notice of the facts above stated, and forbade the sale. Plaintiff insists that the interest on said bond is usurious; asks that there be an accounting between plaintiff and defendants, and that the sale be set aside.

Defendants filed answer to this petition, admitting the execution of the trust deed by respondent; also, the date and maturity of the bond and the rates of interest as given; also, that there are stipulations in the trust deed in substance as stated in the petition. That Bailey was sheriff as stated; that the First National Bank is a corporation; that Bailey, by direction of said bank, sold said land under said trust deed and that said bank became the purchaser thereof. The answer then denies all other allegations in the petition. As a further defense it sets up that it was stipulated in said deed of trust in case of default in the payment of the bonds or coupons at the time, in the manner, and at the place specified, or in case of non-payment of taxes or neglect to procure or renew insurance on the property it should be lawful for the trustee or his successor on the application of the legal holder of said bond or coupons, * * to sell the property * * and to execute a deed of conveyance therefor and to apply the proceeds of sale first, to the payment of the expenses of advertising, selling and conveying said property, including also the sum of $50 for an attorney's fee and second the amount then due on said bond and coupons and third, the residue to be paid to respondent; that in default of any of the payments of principal or interest, or of a breach of any of the covenants or agreements contained in said deed of trust, the whole of the sum thereby secured, with interest to the time of sale, should become due and payable; and the premises in said trust deed described, might at once be sold in the same manner and with the same effect as if said bond, by its terms had matured.

That on January 12th, 1880, said Bunn, for value received, indorsed and delivered said bond to defendant, the First National Bank, and said defendant thereby became the legal owner and holder thereof, and of the coupons attached thereto; that plaintiff failed to keep and perform the stipulations and covenants in said deed of trust contained, in that he failed and neglected to pay the interest coupon which became due on the 2d day of January, 1880. And failed and neglected to pay the taxes for the years 1878 and 1879, or either of said years, at the time they became due or any time thereafter, as required by the covenants in his said deed of trust; and failed to insure, or cause to be insured, said property as required; that by reason of the breaches of said covenants and agreements said bond, and all interest then due, became due and payable, and it became and was lawful for defendant, said National Bank, as the owner and holder of said bond and coupons, to cause said property to be sold; that said Bailey, pursuant to the terms and provisions of said deed of trust, did, on the 25th day of February, 1880, at the court house door in the city of Independence, sell at public vendue, to the highest and best bidder for cash, the said real estate, and that at said sale and bank became the purchaser, at and for the priceand sum of $560.50, and received a deed therefor; that the expenses attending the sale and transfer of said real estate as aforesaid, amounted to $97.50, leaving a balance of $462.50, which was applied as a credit on said bond, as required by the terms of said deed of trust.

In reply to this answer, plaintiff states that at the time he made the loan mentioned in the petition, Wm. H. Bunn, from whom he effected said loan, retained from the amount borrowed by plaintiff, sufficient money to pay the insurance on the buildings erected on the premises, and agreed to have the same insured; that sometime in the fall of 1879 said building was destroyed by fire; that plaintiff believed that said Bunn, through whom he effected said loan, had insured the building, and so believed until after it was destroyed; that on inquiring of said Bunn, he learned that he had failed and neglected to have it insured, and that said Bunn afterwards refunded to plaintiff the money he had obtained for the purpose of effecting said insurance. All the other allegations of the answer are denied.

To this reply there was no demurrer or motion to strike out.

There is little, if any, conflict about the material facts, which are in brief as follows:...