Potter v. Schaffer

• Decision Date: 26 February 1908
• Parties: W. F. POTTER v. DANIEL SCHAFFER, Appellant
• Court: Missouri Supreme Court

108 S.W. 60

209 Mo. 586

W. F. POTTER v. DANIEL SCHAFFER, Appellant

Supreme Court of Missouri, First Division

February 26, 1908

Appeal from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

Fogle & Fogle and E. R. McKee for appellant.

(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action. Jopling v. Walton, 138 Mo. 485. (2) There was no tender in this case. Landis v Saxton, 89 Mo. 375; Hudson v. Glencoe Gravel Co., 140 Mo. 103; secs. 1565 and 1564, R. S. 1899; Berthold v. Reyburn, 37 Mo. 586; Voss v McGuire, 26 Mo. App., 452; Woolner v. Levy, 48 Mo.App. 469. (3) But if there was a tender after default in the payment, still appellant's deed would be good. A tender after maturity of the amount of the debt secured by a deed of trust on land, does not extinguish the debt or lien nor operate to defeat a sale and a trustee's deed thereunder. Hudson v. Glencoe Gravel Co., 140 Mo. 103; Cockrell v. Kirkpatrick, 9 Mo. 697; Raymond v. King, 58 Mo.App. 303; McClung v. Trust Co., 137 Mo. 106; Ruppel v. S. & B. Assn., 158 Mo. 613; Knollerberg v. Nixon, 171 Mo. 445; secs. 1564, 1565, R. S. 1899; McGuire v. Brockman, 58 Mo.App. 307; Kline v. Vogel, 90 Mo. 245; Landis v. Saxton, 89 Mo. 375. (4) A tender to be available must be kept good. Berthold v. Reyburn, 37 Mo. 587; Railroad v. Clark, 119 Mo. 357; Voss v. McGuire, 36 Mo.App. 452. (5) Plaintiff saw the notice of sale in the paper, was in town the day of the sale, saw the sale conducted, sat by and saw the defendant take possession of the farm, consented to it, saw the defendant improve it, fence it, cultivate it, pay taxes thereon, make lasting and valuable improvements, and waited for three years and more before he brought this suit to redeem; he is, therefore, guilty of such laches as equity will not tolerate. Laches is an equitable defense and there is no artificial, fixed, or determinate rule on this subject, but each case, as it arises, must be decided according to its own particular circumstances. Landrum v. Bank, 63 Mo. 48; Kline v. Vogel, 90 Mo. 239; Badger v. Badger, 2 Wall. 94; Sullivan v. Railroad, 94 U.S. 807; Twin Lick Oil Co. v. Marbury, 91 U.S. 591; Bliss v. Prichard, 67 Mo. 181; Evans v. Snyder, 64 Mo. 516; Stevenson v. Saline Co., 65 Mo. 425; Bradshaw v. Gates, 67 Mo. 221; Kelley v. Hurt, 74 Mo. 561; Burgess v. Railroad, 99 Mo. 497; Wall v. Beedy, 161 Mo. 625. (6) Plaintiff stood by and witnessed the sale and afterwards demanded the surplus, over and above the debt and the cost; he is, therefore, not entitled to redeem in this case. He is estopped from redeeming. White v. Smith, 174 Mo. 186. (7) Plaintiff is not entitled to redeem in this case for another reason, because under the statute he must give notice to the trustee or cestui que trust that he intends to redeem said land, and he must within a reasonable time file with the court or clerk thereof in vacation a good and sufficient bond to pay all the interest and waste that may be committed on the land. This the plaintiff has not done and therefore must fail on the first ground. Secs. 4343 and 4345, R. S. 1899; Life Ins. Co. v. Rogers, 155 Mo. 311; Sheridan v. Nation, 159 Mo. 34; Wamsley v. Dougherty, 163 Mo. 298. (8) To establish a tender, proof must be clear that the full amount due was absolutely and unconditionally tendered. Tuthill v. Morris, 81 N.Y. 94; Parks v. Allen, 42 Mich. 482; Canfield v. Conkling, 41 Mich. 371; 1 Jones on Mortgages (6 Ed.), sec. 893. (9) The mortgage covers not merely the debt, but the cost of a suit by the mortgagee to recover the debt or to enforce the security. Rosin v. Hall, 56 Me. 142; Hird v. Coleman, 42 Me. 182; Allen v. Robbins, 7 R. I. 33; 1 Jones on Mortgages (6 Ed.), sec. 981 a. (10) The right of redemption is barred by a foreclosure properly made, except when a further right is given by statute. Weiner v. Heintz, 17 Ill. 259; Stoddard v. Forbes, 13 Iowa 296; Ballenger v. Bourland, 87 Ill. 513; Martin v. Ward, 60 Ark. 510; sec. 4371, R. S. 1899; Bldg. Inv. Co. v. Dunsworth, 46 Mo. 369. (11) The deed is prima-facie evidence of default in payment of the debt, and that the sale was made at the request of the holder of the note, and the recital in the deed that certain interest coupons are due and unpaid, is prima-facie evidence of that fact. Morrison v. Herrington, 120 Mo. 674; Bldg. & Inv. Co. v. Dunsworth, 146 Mo. 361; Hume v. Hopkins, 140 Mo. 65. (12) The statute provides a method and remedy for the mortgagor in the redemption of his land sold under foreclosure proceedings and is exclusive and this method alone must be followed. This the plaintiff did not do in this case and is therefore barred. McHen v. Wells, 39 Mich. 175; Scobby v. Kinningham, 131 Ind. 552; Herdman v. Cooper, 138 Ill. 583; Thonley v. Moore, 106 Ill. 496; White v. Smith, 174 Mo. 200.

John D. Smoot, C. E. Murrell and Higbee & Mills for respondent.

(1) The evidence abundantly establishes that the February interest was actually tendered to Baker, and also to Schaffer, on February 20, and the printer's bill for the first insertion of the notice of sale was paid by plaintiff at the direction of George R. Baker, who ordered the foreclosure on behalf of defendant. That was sufficient to stop the sale; a sale after that would savor of oppression, and will be set aside. State ex rel. v. Ross, 136 Mo. 273; Swon v. Stevens, 145 Mo. 398. (2) Schaffer was the owner of the note at the time of the sale, at the time of the tenders, and long before. He was both buyer and seller; the sale was not made for the honest purpose of realizing the interest or debt; not only were the tenders oppressively refused, but the surplus was pocketed, according to Figge's evidence. Under the circumstances disclosed by the evidence in this case "equity will not stop to inquire for particular fraud, since fair dealing is not to be expected under such circumstances, but will set aside the sale on the prayer of the debtor." The power of sale was not executed in good faith for the best interests of all the parties concerned. Polliham v. Revely, 181 Mo. 634; Axman v. Smith, 156 Mo. 286. (3) The petition pleads the previous tenders and their wrongful and oppressive refusal; offers to bring into court and pay defendant any sum that may be found due him; prays an accounting and that plaintiff be permitted to redeem; that the sale and conveyance under said deed of trust be set aside, etc. When the court took the account and ascertained the sum due defendant, plaintiff brought that sum into court in cash and tendered it to defendant in open court, which tender and its refusal are recited in the decree of the court. The petition states a good cause of action. In such case, where an accounting of rents, taxes, interest, etc., is sought, a tender before suit is not necessary, nor need the plaintiff bring any money into court until the amount due is ascertained. Kline v. Vogel, 90 Mo. 250; Jopling v. Walton, 138 Mo. 490; Lipscomb v. Ins. Co., 138 Mo. 17. It is suggested by appellant that the tenders were not good. Plaintiff had the money in his hand and offered to pay the interest and in fact paid the costs. Baker and Schaffer each refused actual tenders. "A tender is good without actual production of the money, where the party to whom it is due refuses to accept." Stephenson v. Kilpatrick, 166 Mo. 262. In Yeaman v. Lepp, 167 Mo. 61, Kline v. Vogel, supra, was approved. Railroad v. Clark, 119 Mo. 372. (4) Appellant insists plaintiff is barred by his laches; that he consented to defendant's taking possession, and waited more than three years before bringing suit. Plaintiff testified: "I told him to stay out. I went there to haul off some posts, he came down and tried to stop me. I knocked him down and got the posts and went away peacefully." Was this acquiescence? Evans v. Railroad, 64 Mo. 456; 18 Am. & Eng. Ency. Law (2 Ed.), 105. Plaintiff had the full statutory period in which to bring his action. Kline v. Vogel, 90 Mo. 250.

OPINION

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 the 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 court house 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...