Potter v. Schaffer

• Decision Date: 26 February 1908
• Citation: 108 S.W. 60,209 Mo. 586
• Parties: POTTER v. SCHAFFER.
• Court: Missouri Supreme Court

108 S.W. 60

209 Mo. 586

POTTER v. SCHAFFER.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. MORTGAGES — INTEREST — TENDER — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a finding that a debtor was ready and willing and offered to pay the interest and all costs under the deed of trust under which sale was made for alleged default in payment of such interest.

2. SAME — BILL TO REDEEM — SUFFICIENCY.

A tender of accrued interest and costs under a deed of trust need not be kept good by deposit in court to defeat the creditor's right to proceed to a sale, and where, notwithstanding tender, a sale is made, a bill to redeem is sufficient if it alleges the tender and sale, and in addition offers to do equity by paying into court such amount as the court may find should be paid upon a decree for redemption.

3. SAME — RIGHT TO STOP SALE.

Unless precluded by the specific terms of a deed of trust, the debtor may stop a sale thereunder for default in interest at any time prior to sale by paying or tendering the decree interest and costs, and if the sale is made after such tender he can redeem.

4. SAME — SUFFICIENCY OF TENDER.

Where a debtor offers to pay a debt and at the time has cash in hand with which to pay, and the creditor states that he will not receive payment, the debtor need not actually count out the exact amount of the debt.

5. SAME.

In an action to redeem from a sale under a deed of trust for default in interest payment, plaintiff need show nothing further than an offer before the sale to pay the accrued interest and costs, since the law precludes the creditor from refusing the tender and proceeding with the sale.

6. SAME — REDEMPTION FROM CESTUI QUE TRUST.

Rev. St. 1899, § 4343 [Ann. St. 1906, p. 2390] et seq., providing for the redemption of land sold under a deed of trust to the cestui que trust, does not provide an exclusive remedy, but courts of equity may allow redemption in a proper case whether the statute has been followed or not.

7. SAME — LACHES.

Where plaintiff's land was sold under a deed of trust to defendant, the cestui que trust, plaintiff was not guilty of laches barring an action to redeem, because he did not sue at once where plaintiff openly opposed defendant's taking and retention of possession.

8. SAME.

In an action to redeem land sold under a junior deed of trust to the cestui que trust on default in interest payment, in determining the amount to be paid to entitle plaintiff to redeem, the cestui que trust's rights under a senior deed of trust, which he also owned, and his payment of taxes were properly considered.

9. APPEAL — FINDING — CONCLUSIVENESS.

On appeal in an action to redeem land sold under a deed of trust, the chancellor's finding as to the amount that should be paid to entitle plaintiff to redeem should not be disturbed, where it is supported by evidence.

10. MORTGAGES — FORECLOSURE — RIGHT TO RENTS AND PROFITS.

Where, on redemption of land sold under a deed of trust, defendant is allowed interest on the amount due, he is not entitled to the rents and profits while in possession.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by W. F. Potter against Daniel Schaffer. From a judgment for plaintiff, defendant appeals. Affirmed.

Fogle & Fogle and E. R. McKee, for appellant. John D. Smoot, C. E. Murrell, and Higbee & Mills, for respondent.

GRAVES, J.

Plaintiff was the owner of a tract of land in Schuyler county upon which he had given two deeds of trust, the first to secure a note of $1,800, and the second to secure a note of $700. These notes were given to different parties, but were both purchased and owned by the defendant. One C. Figge was the trustee in the deed of trust securing the $700 note. Said Figge at the request of defendant sold the land under such deed of trust, and defendant became the purchaser at price of $800, although plaintiff's equity is shown to have been far in excess of that sum. The sale was made prior to the maturity of the note, but for an alleged default in the interest due thereon. The action is one to redeem, in which an accounting is asked, accompanied by an offer to pay and bring into court such sum as the court might find to be due. The material portion of the petition reads. "The defendant became the owner and holder of said note, and caused and procured said C. Figge, trustee as aforesaid in said deed of trust, to advertise said land for sale under said deed of trust on March 24, 1902, at the south door of the courthouse in the city of Lancaster, Missouri, for an alleged default in the payment of said note; that said note was not then due, and only one installment of interest was then due and unpaid, and plaintiff tendered to C. Figge, trustee, and to defendant all the interest then due and payable on said note, and all costs incurred in so advertising said land for sale, and by the direction of defendant plaintiff paid the costs of so advertising said lands for sale under said deed of trust, and demanded that defendant and said trustee discontinue said sale, but the defendant and said trustee wrongfully and oppressively refused to accept said tender and offer of payment of interest and costs so accrued, and wrongfully, oppressively, and without any authority so to do proceeded to and did on said March 24, 1902, against plaintiff's protest, offer said lands for sale under said deed of trust, and sold same to defendant for the pretended consideration of $800, and thereupon said C. Figge, as trustee aforesaid, executed to defendant a trustee's deed under said deed of trust and sale, conveying said lands to defendant, and same was filed for record and recorded in the deed records of this county. Plaintiff says that the provision in said note for the payment of 8 per cent. semiannual interest was and is usurious and violative of the law regulating the rate of interest in this state, and forbidding the compounding of interest more than once a year, as provided by section 3711 of the Revised Statutes of Missouri of 1899 [Ann. St. 1906, p. 2080], that said lands were sold in a lump, and not in their smallest legal subdivisions, and for one-seventh of their value, a grossly inadequate consideration." Answer was general denial and plea of laches. By the judgment plaintiff was permitted to redeem upon the payment of $2,891.44, within 30 days, which sum plaintiff brought into court forthwith, but defendant refused the same, and thereupon the trustee's deed was set aside, and by the decree for naught held. Defendant thereupon appealed after unsuccessful motion for new trial.

1. The evidence upon the question of tender of the interest due upon the note of $700 is conflicting. The sale was under the deed of trust securing the note of $700. Of this there is no question. Nor is it claimed that reference is made in this deed of trust to the one securing the $1,800. Both notes were at the time held by defendant, and the interest on both were due, but the principal on neither was due, unless made due by default of interest. The evidence of plaintiff and his corroborating witnesses is to the effect that plaintiff tendered the interest on the $700 note before the advertisement under the mortgage or deed of trust. The evidence for plaintiff further shows that after the advertisement was published for one week, by directions for counsel for the defendant, he paid the accrued costs of the publication, but was afterwards informed that the client had repudiated the action of counsel. This evidence of the plaintiff and his witnesses is controverted by defendants, and it became a matter for the chancellor to decide. Suffice it to say that we have examined this evidence, and agree with the conclusion of the court nisi to the effect that a tender was made. When we say a tender was made, we mean in the broad sense of a legal tender. The evidence is sufficient to show, and for the court to find, that the plaintiff was ready and willing and offered to pay the interest and all costs under the second mortgage. This is the only one under which sale was made. The finding of the court upon this one question is abundantly sustained by the evidence, and without yielding the right of this court to review the evidence, in equity cases, which review we have made. We concur in this finding of the trial court.

2. It is contended, among other things, that the petition fails to state facts sufficient to constitute a cause of action. On this point we are cited to case of Jopling v Walton, 138 Mo. 485, 40 S. W. 99, wherein the writer hereof was of counsel for the defendant, and...