Rideout v. Burkhardt

• Decision Date: 17 February 1914
• Citation: 164 S.W. 506,255 Mo. 116
• Parties: RIDEOUT v. BURKHARDT et al.
• Court: Missouri Supreme Court

164 S.W. 506

255 Mo. 116

RIDEOUT v. BURKHARDT et al.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. PLEADING (§ 420)—DEPARTURE—WAIVER.

Plaintiff purchased incumbered property assuming the incumbrances, and, being unable to find the holder of the note secured by a second deed of trust, he failed to pay the interest when due, and the deed of trust was foreclosed without his knowledge. Thereafter plaintiff conveyed the property, and when his grantee came to convey the land the foreclosure was discovered, whereupon plaintiff commenced an action to redeem the land and set aside the sale. Before trial the property was reconveyed to plaintiff, and he thereupon filed an amended petition setting up the conveyances and the reconveyance pending suit. Held, that defendants by answering to the merits of the amended petition waived any departure between plaintiff's original and amended petitions and could not on appeal contend that he could not maintain action because at the time it was instituted he had no title.

2. MORTGAGES (§ 372)—SALE BY TRUSTEE— BONA FIDE PURCHASERS.

Under Rev. St. 1909, § 2810, providing that all recorded deeds shall import notice to all persons of the contents thereof and that all subsequent purchasers shall be deemed to purchase with notice, subsequent purchasers of land sold under the foreclosure of a deed of trust cannot claim to be bona fide purchasers, where recitals in the original deed of trust and the trustee's deed showed irregularities in the sale; such deeds being in their chain of title.

3. PARTIES (§ 84)—NONJOINDER—WAIVER.

Under the direct provisions of Rev. St. 1909, § 1804, objections on account of the nonjoinder of parties are waived when the objection is not raised by demurrer or answer.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Suit by Eli Rideout against J. F. Burkhardt and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is a proceeding in equity brought in the circuit court of Vernon county, Mo., to redeem certain real estate from the sale under a deed of trust by reason of alleged irregularities in the sale made by the trustee under said deed of trust. The land in controversy consists of about 228 acres in Vernon county, Mo. In February, 1909, plaintiff, Rideout, purchased the land, taking the same subject to two deeds of trust; one for $2,500 and a second, and subsequent one for $500. By the second deed of trust the land was conveyed to defendant W. G. Safford, as trustee, for Jessie Ray Safford, the payee in the note and one of the defendants herein. The interest on this second mortgage became due in March, 1909, and by the terms of his purchase plaintiff, Rideout, was to pay this interest. When the interest became due, although he made considerable effort to find the owner of the note, he did not succeed in so doing, and no demand was made upon him for the interest. On August 3, 1909, Rideout and wife traded this land to E. B. Griffith and on said date made conveyance of said land to said Griffith. On August 4, 1909, said Griffith conveyed the land to one A. J. Patterson. During the course of the trade between Rideout and Griffith, Rideout procured an abstract to be brought to date on the land, and then for the first time discovered that the land had been sold on June 8, 1909, by trustee's sale under said second deed of trust, and that at said trustee's sale defendant J. F. Burkhardt purchased the land for the sum of $550, and that the trustee under said deed of trust, on June 15, 1909, executed a trustee's deed conveying said land to defendant J. F. Burkhardt. On June 25, 1909, said Burkhardt conveyed said land to Edward P. Mason, defendant herein. On June 22, 1909, said Edward P. Mason by warranty deed conveyed said land to the defendants John C. Breckenridge and George T. Bowman. On June 23, 1909, defendants Breckenridge and Bowman conveyed said land by deed of trust to A. Kuns, trustee for the defendant Charles G. Safford, to secure the payment of a note in the sum of $1,850. As soon as plaintiff, Rideout, discovered the above matters upon examining his abstract, he, together with his first grantee, E. B. Griffith, instituted this suit on August 7, 1909. On October 20, 1909, A. J. Patterson, who had received conveyance of this property from said Griffith, conveyed his interest in said land back to plaintiff, Eli Rideout, and on March 17, 1910, plaintiff, Rideout, filed his amended petition setting up the after-acquired interest of Patterson and omitting Griffith as a party plaintiff.

The evidence shows that the value of the equity in this farm at the time of the trustee's sale was approximately $7,000. The trustee's notice of sale and also the trustee's deed to Burkhardt described the deed of trust as being dated September 13, 1906; whereas, the correct date of the deed of trust was March 12, 1906. The published notice of sale stated that the sale would take place on Monday, June 8, 1909, and the trustee's deed recites that the sale did occur on Monday, June 8, 1909; whereas, the evidence shows that June 8, 1909, was on Tuesday. Plaintiff tendered into court the sum of the second mortgage and interest and asked that he be permitted to redeem said premises, and that the sale by said trustee be set aside, and that he hold said premises free and clear from any claim of any of the defendants. The amended petition filed by plaintiff does not differ in its statement of facts from the original petition, except that the amended petition states that plaintiff conveyed the property to E. B. Griffith, August 5, 1909, and that said Griffith sold and conveyed the same to one A. J. Patterson, and that afterwards, and since the filing of this suit, the said Patterson reconveyed said premises to said plaintiff. The defendants Breckenridge and Bowman, who are the only defendants that have appealed, filed separate answer to said amended petition. In their separate answer, appellants admitted that plaintiff, Rideout, was the owner of the land at the date of the sale under the deed of trust, and alleged that the property was sold under said deed of trust to defendant Burkhardt, and that Burkhardt afterwards transferred it to defendant Mason, and that defendant Mason conveyed it to said defendants. Said defendants further allege that on the 3d day of August, plaintiff conveyed said property to one Griffith, and "on a later date instituted this proceeding and at a time when he had no right, title, or interest in said land, and that plaintiff has since said time had possession of said property." Defendants then pray that the plaintiff be ousted from said land and that the possession of said land be vested in said defendants. All of the deeds and deeds of trust above mentioned were of record in the recorder's office of Vernon county, Mo. Trial was had resulting in a decree for plaintiff as prayed. The court found that the sale by said trustee under said deed of trust was irregular and did not pass the equity of redemption, and permitted plaintiff to redeem the land by paying the amount of the second mortgage and interest into court, and found that all the defendants had received their respective conveyances to said premises with full notice of the outstanding right of redemption, and decreed that ...