Roby v. Smith

• Decision Date: 14 July 1914
• Docket Number: No. 16740.,16740.
• Citation: 168 S.W. 965,261 Mo. 192
• Parties: ROBY et al. v. SMITH et al.
• Court: Missouri Supreme Court

168 S.W. 965

261 Mo. 192

ROBY et al. v. SMITH et al.

No. 16740.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. MORTGAGES (§ 617) — DEED OF TRUST— FORECLOSURE SALE — CONSIDERATION OF BIDS—SUFFICIENCY OF EVIDENCE.

Evidence in an action to redeem real estate from a sale under a deed of trust held insufficient to show that the trustee refused to consider all bids made at the sale.

2. MORTGAGES (§ 614) — DEED OF TRUST — FORECLOSURE SALE — ACTION TO REDEEM — LACHES.

An action to redeem real estate from a sale under a deed of trust was barred by laches, where there was no evidence of any hidden defects or fraud connected with the sale, and the plaintiff in possession at the time of the sale, presumably as agent of his coplaintiffs, surrendered possession without protest, and the action was not instituted or any claim of title asserted by plaintiff for 23 months after the sale, during which time defendant made improvements which more than trebled the value of the property.

3. MORTGAGES (§ 369) — DEED OF TRUST — FORECLOSURE SALE — VALIDITY — CONSIDERATION.

That property subject to a deed of trust sold at a trustee's sale for not more than one-fourth its value did not invalidate the sale.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Joe N. Roby and others against Jack Smith and others to redeem real estate from sale under a deed of trust. From judgments for defendants, plaintiffs appeal. Affirmed.

Action to redeem real estate from sale under a deed of trust. From a judgment for defendants, the plaintiffs prosecute their appeal to this court. This suit was instituted in the circuit court of Lawrence county and transferred, by change of venue, to the Circuit court of Greene county.

Almeda Weaver of Aurora, Mo., owned a home in said city, upon which she placed a deed of trust for $100 on September 26, 1907, to secure a loan of that amount from C. W. Froley. M. T. Davis was made trustee in this deed of trust.

Mrs. Weaver died October 20, 1907, leaving five children, all adults, surviving her. The names and residences of her respective children were as follows: James H. Roby, Oklahoma; Emma Kice, Kansas City, Mo.; S. M. Roby and A. A. Roby, Joplin, Mo.; and Joe N. Roby, who resided with her upon the incumbered property. Mr. Froley sold the $100 note secured by the deed of trust to Jack Smith, principal defendant in this action. On November 2, 1908, defendant Smith caused the deed of trust to be foreclosed, and purchased the property at the trustee's sale for $125. The object of this action is to set aside the trustee's sale and the deed made thereunder.

The plaintiffs, except A. A. Roby, are the legal heirs of Almeda Weaver, deceased. Said A. A. Roby, having refused to become a plaintiff, was named as one of the defendants.

The plaintiffs aver in their petition that before the property in controversy was advertised for sale by the trustee (Davis) the plaintiffs tendered to the defendant Smith all the indebtedness secured by the deed of trust, and said defendant refused to accept such tender; that at the sale the trustee accepted defendant's bid of $125, and refused to accept or cry a higher bid made by a solvent party; that the property was worth at the time of the sale $1,250, and would rent for $10 per month; that the rental of said property during the time it has been in the defendant's possession is more than sufficient to extinguish the debt for which it was sold. Wherefore, plaintiffs demanded to be permitted to redeem the property, and, if a balance was found due defendant Smith after charging him with rents as aforesaid, the plaintiffs be adjudged to pay the same. Plaintiffs further prayed:

"That such orders and judgments and decrees be made in the premises as will adeguately protect the rights of all parties in interest, whether specifically asked for herein or not, to the end that the very rights of all the parties may be protected."

The answer of defendant Smith avers that he bought the property in good faith, and that, after his purchase thereof in November, 1908, he made many improvements upon the dwelling house, and erected a business house thereon, expending altogether about $2,500 in making permanent improvements before he received any knowledge or notice that plaintiffs set up any claim to said premises. Wherefore, he asserted that plaintiffs were, by their delay and laches, estopped from contesting the validity of said trustee's sale or asserting title to said property.

The only plaintiff who testified in the case was S. M. Roby, who stated that three of the heirs of his mother offered to pay off the $100 lien placed upon the land in controversy; that he gave his brother Joe N. Roby a check for $38 to cover his part of the expense of paying said debt. No other details of the alleged tender were given by this witness.

The only other evidence of an offer to redeem comes through the cross-examination of defendant Smith, who testifies as follows:

"Q. Tell the court if anybody at any time offered to pay this note. A. After I got the note, after Mr. Froley sold me the note—I don't remember how long it was afterwards—Roby met me one day, and says, `I have got the money to pay that note off;' and I says, `If you will meet me at the People's Bank in about 20 minutes you can pay it off;' and I waited there a few minutes, and he came in and said, `If I pay that note off, you make it just like you got it from Froley.' I says, `If you pay it off, I will let the cashier mark it paid;' and I says, `If you have got the money to pay that note off, you could pay for the groceries you have bought.' * * * He said he had the money to pay it off. He said that he would meet me at the bank in 15 minutes, and he said he wanted it signed over just like he wanted it; and I told him if he had the money to pay off this note he could pay for the groceries that he got several years ago; if he paid it off I wanted the cashier to mark it paid. Q. That's the only thing that kept you from settling this matter? A. After it was marked paid by the cashier I said I would turn it over to him. He said he wouldn't do it, and he turned and walked out of the bank. Q. You refused to accept the money until the cashier marked it paid, did you; that is the only reason that Joe Roby didn't pay that note that day down there at the bank, is because you wouldn't take the money until the cashier marked the note paid? A. I didn't see any money; I told him if he would let the note be marked paid I would turn it over to him. Q. Down there at the bank about a month before the sale under the deed of trust —before the note was due—you met Joe Roby? A. I couldn't tell you; I might have met him every day. Q. You met him there at the bank for the purpose of making a settlement of this note? A. Yes, sir; met him there for the purpose of paying it off. Q. Now, after the note was due, you told Joe Roby you would meet him at the bank, where he could pay that note off? A. Yes, sir. Q. After you got down there, you told Joe you wouldn't take the money unless he would first let the cashier mark the note paid? A. That's what I told him. * * * Q. He told you he wanted you to indorse it just as you had gotten it, and you refused to do it? A. Yes, sir."

Said plaintiff S. M. Roby stated that he knew his brother Joe N. Roby was living in the property when the deed of trust was foreclosed; heard of the sale about two weeks after it took place; heard that defendant Smith moved into the house three or four weeks after the sale. Said witness further stated that his brother returned the check for $38 about two weeks after it was given. He refused to become a party plaintiff when the...