Price v. Rausche

• Decision Date: 30 March 1916
• Docket Number: No. 17894.,17894.
• Citation: 186 S.W. 968
• Parties: PRICE v. RAUSCHE et al.
• Court: Missouri Supreme Court

186 S.W. 968

PRICE v. RAUSCHE et al.

No. 17894.

Supreme Court of Missouri, Division No. 1.

March 30, 1916.

Rehearing Denied June 2, 1916.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Pearl Price against Herman Rausche and others. Judgment for plaintiff, and defendants appeal. Affirmed.

On May 6, 1912, respondent, Pearl Price, commenced a suit in equity in the circuit court of St. Louis county, Mo., against Herman Rausche, Elizabeth Ehrhardt, W. H. J. Huppert, H. W. Karrenbrock, George Beil, Mary Beil, his wife, James Holmes, and Mollie Davis, for the purposes hereafter mentioned. She charges in said petition that George Beil was in possession and owned, subject to such liens, as were of record, the real estate hereafter described in the decree of said circuit court; that on March 7, 1910, she purchased said real estate from said Beil and wife for $750; that by agreement of the parties the written contract of sale was executed by said George Beil and wife as parties of the first part, and said James Holmes and Mollie Davis, for and in behalf of plaintiff, as parties of the second part; that plaintiff paid $25 in cash, as part of the consideration aforesaid, and thereafter made additional payments on said land, which made the total payments received by said Beil and wife as part of the purchase money aforesaid, on April 6, 1912, $255, in addition to the interest paid on the deferred payment to said date — all of which will more fully appear in the decree of the trial court, set out as a part of this statement — that, upon the execution of the contract of sale aforesaid, the plaintiff entered into possession of said real estate, and continued to occupy the same up to the trial of this cause; that on April 6, 1912, said Beils attempted to declare a forfeiture of said contract as against this plaintiff, and by warranty deed conveyed said real estate to defendants Rausche and Ehrhardt, who in turn mortgaged the same to one Huppert for the sum of $800; that said Rausche and Ehrhardt purchased said property from said Beils, with full knowledge of plaintiff's rights in said real estate, and in fraud thereof; that all the parties to said deed of trust knew that plaintiff was the actual owner of said property and acquired no rights therein as against this plaintiff; that, by the terms of said contract of sale, plaintiff was not entitled to receive a deed to said property until her payments thereon should amount to $375, and until the interest on said purchase price should have been paid; that the warranty deed from Beils to defendants Rausche and Ehrhardt, and the deed of trust aforesaid, cast a cloud upon the title of plaintiff to said property, etc.

Defendants Herman Rausche and Elizabeth Ehrhardt, by their counsel, Kurt Von Reppert, filed a general denial. Defendants Beil and wife, by their counsel, Albert Burgess, filed an answer putting in issue the allegations of petition, etc., and attempted to justify the alleged forfeiture and sale of said property by reason thereof, etc.

Plaintiff's reply contains a denial of the new matter in the answer of Beils, and pleads a waiver of their right to declare a forefeiture, etc.

The case was dismissed as to defendants Huppert and Karrenbrock.

The trial court had before it the witnesses offered by the respective parties; and, notwithstanding the irreconcilable conflict of testimony, the chancellor ruled with eminent fairness throughout the trial, and in our opinion his findings as to the facts herein are sustained by the testimony adduced at the trial. Said findings and decree are as follows:

"This cause coming to be heard, and the parties appearing thereto, by their respective attorneys, and said cause having been submitted to the court upon the pleadings and the evidence adduced, and the court having taken further time to consider the same, and being now sufficiently advised of and concerning said cause, the court doth find the issue in favor of the plaintiff, and doth find that on the 7th day of March, 1910, the defendants George Beil and Mary Beil, his wife, were the owners and in possession of a certain lot or parcel of ground, in the town of Luxemburg, county of St. Louis, state of Missouri, bounded and described as follows: Lot No. 16, in block 3, of Rose Cottage Heights, being a subdivision of parts of blocks 87 and 92, of Carondelet Commons, south, and in the county of St. Louis, state of Missouri, fronting 146 feet 5 inches, more or less, on the west line of Eighth street, by a depth westwardly, along the north line of said lot, 125 feet to an alley 15 feet wide, and which said lot has a width of 45 feet, more or less, to the center of Gravois creek; bounded on the north by lot 17, on the east by Eighth street, on the south by the center of Gravois creek, and on the west by the said alley.

"Second. The court doth further find: That on said March 7, 1910, said George and Mary Beil sold said lot, tract, or parcel of ground to the plaintiff, Pearl Price, but that, through some misunderstanding of the law, the contract of sale was made in the names of James Holmes and Mollie Davis. That said defendants, George and Mary Beil, then and there sold said lot to plaintiff for the price and sum of $750, payable $25 in cash, and the balance in monthly installments of not less than $10 each, payable on the first day of each calendar month thereafter, interest payable every six months thereafter, until one-half of the purchase price of said property and the interest on the whole of the unpaid purchase money to that date had been paid, at which said last-mentioned time said George and Mary Beil, at the option of plaintiff, would execute and deliver to her a warranty deed to said property, and that plaintiff was then to make, execute, and deliver to said George and Mary Beil her principal note in the sum of the remaining unpaid purchase mony, to wit, the sum of $375, payable three years after date, with interest at the rate of 6 per cent. per annum, payable semiannually, and secured by deed of trust in due form, upon said property. That plaintiff was at liberty to pay any amount in excess of the regular monthly payments at any time during the life of said contract; interest to cease upon the amount so paid. The time was made the essence of said contract, and, if any payments on said purchase price were not made within 30 days after they should become due, then said contract, at the option of said George and Mary Beil, might by them be declared null and void, and said George and Mary Beil, or their executors, heirs or assigns, might retain as liquidated damages all payments theretofore made, and might sell said property to other persons for their use and benefit.

"Third. The court doth further find that the strict terms of said contract were waived repeatedly by said defendants George and Mary Beil, and that said plaintiff, Pearl Price, up to October 22, 1912, the date at which this case came up for trial by this court, has paid the total sum of $330, on account of said purchase price, together with all the accrued interest thereon, and the taxes assessed against said property for the years 1910, 1911, and 1912.

"Fourth. The court doth further find that, on said 6th day of April, A. D. 1912, said defendants, George and Mary Beil, by their deed of that date to the defendants Herman Rausche and Elizabeth Ehrhardt, recorded in the office of the recorder of deeds of said county of St. Louis, in Book ____, at page ____, sold, or attempted to sell and convey, said entire property to said defendants, Herman Rausche and Elizabeth Ehrhardt, and that on said 6th day of April, A. D. 1912, said defendants, Herman Rausche and Elizabeth Ehrhardt, made, executed, and delivered to one W. H. J. Huppert, as trustee for one H. W. Karrenbrock, their deed of trust upon said property, and other property in the sum of $800, payable three years after date, with interest at the rate of 6 per cent. per annum, payable semiannually; said deed of trust being duly recorded in Book 291, p. 604, in the office of the recorder of deeds of St. Louis county, Mo.

"Fifth. The court doth further find that said defendants, Herman Rausche and Elizabeth Ehrhardt, did not, by said purchase, acquire the full legal title to said property, but simply such interest as said defendants, George and Mary Beil, possessed under said contract between them and said plaintiff, Pearl Price, and that said defendants, Herman Rausche and Elizabeth Ehrhardt, acquired such interest from said defendants, George and Mary Beil, with full knowledge of said contract and its terms, and of the amount that had been collected from said plaintiff, Pearl Price, by said defendants, George and Mary Beil, under it.

"Sixth. The court doth further find that said defendants, George Beil and Mary Beil, under said contract between them and said plaintiff, Pearl Price, were but mortgagees with a right to foreclose, and that plaintiff thereunder had the right or equity to redeem; that the attempted forfeiture of said contract by said Beils, without notice to plaintiff of such intention and without having formally announced to plaintiff that said contract had been forfeited, neither terminated said contract nor divested plaintiff of her rights thereunder; and that said defendants, Herman Rausche and Elizabeth Ehrhardt, by their said purchase and deed, acquired merely the right of said defendants, George and Mary Beil, as mortgagees, and assumed said George and Mary Beil's obligations under said contract.

"Seventh. The court doth further find that W. H. J. Huppert and H. W. Karrenbrock are innocent holders of said $800 deed of trust, and that as to them said deed of trust constitutes a valid and subsisting lien or charge in part against the lot, tract, or parcel of ground in controversy.

"Therefore it is ordered, adjudged, and decreed as follows:

"I. That said plaintiff, Pearl Price, be and she is hereby adjudged and...