Plummer v. Knight
| Decision Date | 08 May 1911 |
| Citation | 137 S.W. 1019,156 Mo.App. 321 |
| Parties | L. M. PLUMMER, Appellant, v. LIDA L. KNIGHT et al., Respondents |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Motion for Rehearing Overruled June 3, 1911.
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
AFFIRMED.
STATEMENT.--This suit was commenced in February, 1910 in the circuit court of Jasper county, Missouri, for the purpose of foreclosing a deed of trust made by John W. Knight and wife on the 18th day of October, 1902, conveying 357 acres of land in Jasper county to H. W. Blair as trustee, for the purpose of securing a promissory note for $ 7500 payable to J. P. Newell. Newell sold this note and coupons to A. A. Plummer of Franklin Pennsylvania, who afterwards died leaving a will of which the plaintiff in this suit became the executor. A. G. Newell and J. P. Newell comprised a partnership in business at Carthage Missouri, and were engaged, through the activities of J. P Newell in loaning money on real estate and selling the notes thus secured to persons in the East, and A. A. Plummer was one of their customers. The Newell firm were also financial agents for Plummer, looking after his loans and collection his interest on notes as they became due in Jasper county, and had in charge first and last a large number of his notes aggregating perhaps $ 100,000.
The deed of trust securing the note in question was what is commonly called a trust deed and contained the usual power of sale in the trustee in case of default in payment of the note, with a provision that in case of the absence of the trustee the sheriff of Jasper county might act in his place.
The defense in the case was that in 1903 there had been a valid foreclosure of the deed of trust. Judgment was rendered for the defendant from which the plaintiff duly appealed.
The evidence developed at the trial was uncontradicted that there was an attempted foreclosure of the deed of trust by sale and a deed made thereunder by the sheriff of Jasper county acting as trustee. It was conceded by the defendants that on the 18th day of April, 1903, John W. Knight, the maker of the note secured by the deed of trust, defaulted in the payment of the interest then due and that by the terms of the deed of trust the same became subject to foreclosure under the power of sale therein contained on account of such default by reason of the failure of the maker to pay interest coupons. It was further conceded that by the terms of the said deed of trust the then acting sheriff of Jasper county was authorized to advertise and sell the said land on request of the legal holder of the said note in the absence of H. W. Blair, the trustee. And it was further admitted that at the time the foreclosure took place and a long time prior and subsequent thereto, the said H. W. Blair was absent from Jasper county in the city of Washington, D. C.; that J. T. Owen, the sheriff of Jasper county, was authorized by the terms of the deed of trust in the absence of the trustee to advertise and sell said land, and that on the 28th day of May, 1903, after having advertised the foreclosure of the deed of trust, he did sell said land for the purpose of satisfying the notes secured by said deed of trust and that the deeds made by him as the sheriff of Jasper county as acting trustee in pursuance of such sale contain all the recitals necessary to good and valid conveyances. That the Regan Land Company and M. J. Palmer and Mary J. Palmer are owners of all the interest in said land, if any, that was sold at the said sale and that the said M. J. Palmer and Mary J. Palmer were purchasers at the sale. It was further admitted by the appellant that the trustee's deed under said deed of trust was duly executed by J. T. Owen, sheriff of Jasper county, as acting trustee under said deed of trust, and that the said deed contains all the necessary recitals to show on its face a valid conveyance of the land described therein by the said sheriff as acting trustee under said deed of trust and that said deed was duly acknowledged and recorded as provided by law on the 28th day of May, 1903. It was further admitted that the order of publication was duly and regularly made as provided by the deed of trust except that it failed to recite that the sale was made by the order or request of the owner or holder of the note.
The suit, as we have stated, was resisted by the defendants because the court had no authority to foreclose the deed of trust on the ground that such deed of trust had been previously legally foreclosed on the 29th day of May, 1903, by a sale of said land therein described under and by virtue of the terms of the deed of trust.
Appellant contends that the sale was invalid and that his right to foreclose was unimpaired because J. T. Owen, the said sheriff of Jasper county and acting trustee, was not in fact authorized by the legal owner and holder of the note in controversy to foreclose the said deed of trust. And he also contends that the notice of sale was insufficient because it did not purport to be made by authority of the legal holder and owner of the said note.
After the date of the sale, Plummer having died, his estate passed into the hands of the present plaintiff as executor of his will, and from the date of the sale to the maturity of the principal of the note, Newell paid the interest thereon himself as it fell due under the pretence that the payments were in fact being made by Knight, and by such payments and representations he continued to deceive Plummer and conceal from him and his representatives for a period of some seven years the fact of the foreclosure sale.
The record in this case is barren of any evidence that the acting trustee and sheriff of Jasper county, J. T. Owen, who foreclosed the deed of trust by sale, was ever expressly authorized or requested by Plummer or his agents to foreclose the same. Respondents contend that Newell was the general agent of Plummer and as such he had authority to direct the foreclosure of the deed of trust and that as general agent he did direct the foreclosure of the same; also that the plaintiff's testator after the sale, with knowledge that a foreclosure had been ordered, ratified the acts of Newell in ordering the sale.
On the day before the sale took place and on the 28th day of May, 1903, A. G. Newell of Carthage, Missouri, wired F. W. Officer at Franklin, Pennsylvania, as follows: "Send Knight papers, $ 7500 loan first mail." Upon the receipt of this telegram, and on the same day it was sent, Officer, in pursuance to the request of Newell, sent the note, deed of trust and correspondence pertaining to the loan to Newell with a letter accompanying the same. At the time of sending his telegram to Officer, Newell also mailed at Carthage, Missouri, to Officer, a letter explaining why he requested the note, coupons, and deed of trust. On the day of the sale, Plummer, who owned the $ 7500 note, was ill, and was and had been for a considerable time previous by reason of failing health, unable to attend to the management of his business and had appointed F. W. Officer as his attorney in fact to manage such business. The telegram of Newell to Officer to send the Knight papers was in consequence of Newell's knowledge of this fact and he therefore sent the telegram to Officer and not to Plummer himself.
The letters referred to in the preceding paragraph will be found in the opinion. To understand more fully the correspondence between Newell and Officer it must be borne in mind that it was carried by mail; that Officer resided at Franklin, Pennsylvania, and Newell at Carthage, Missouri, and in consequence of the distance, it would be some two or three days before a letter mailed at one place would reach the other. As stated, the letter of Newell explaining the telegram was mailed at Carthage, Missouri, on May 28, 1903, and was received by Officer at Franklin, Pennsylvania, on June 3, 1903, and on the said day Officer mailed his reply to the same. After the sale took place, Newell sent a letter to Officer in which he returned the note and deed of trust and stated that it had become unnecessary to foreclose the same. The note on its return contained no indorsements in any way notifying Officer that any foreclosure had been made or that any payment had been made on the note.
On the day of the sale, May 29, 1903, George F. Anderson was present for the purpose of representing the purchasers and attended the sale as agent and representative of the Woods, Waller & Holtz Realty Company, a corporation, and he was a bidder at the said sale for all the land described in the deed of trust given by Knight and wife to H. W. Blair as trustee for Newell securing the note of $ 7500, recorded in the mortgage records of Jasper county on October 18, 1902. That there was present at the sale, J. P. Newell, the payee of the said note, A. L Thomas, an attorney of Carthage, Missouri, who was representing J. P. Newell, J. T. Owen, sheriff of Jasper county and acting trustee, M. J. Palmer, with John Harlan of Sarcoxie, Missouri, from whom Palmer secured the money to pay for the land deeded to by the trustee. Anderson testified that he made his bid for the land in good faith for the said parties believing that he was procuring a good title and that he paid his money therefor with the same belief, and previously to making said bid he examined the advertisement and saw that it was regular; that the sale was at the place and time advertised and that his company and other purchasers for whom he bid in the land took immediate possession of the premises purchased and that the company he represented sold the land in good faith to parties defendant who were successors to their title; that none of them ever heard of...
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