Rowe v. Bank of Centralia
| Decision Date | 07 February 1928 |
| Citation | 2 S.W.2d 191,221 Mo.App. 262 |
| Parties | LILLIE MAY ROWE, BY ARTHUR P. YAGER, HER GUARDIAN AND CURATOR, AND E. G. ROWE, RESPONDENTS, v. BANK OF CENTRALIA, A CORPORATION, AND E. R. BARRETT, APPELLANTS. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Audrain County.--Hon. James A Cooley, Special Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Rodgers & Buffington for appellant.
(1) The extent of plaintiffs' remedy was to tender the amount due on the note as an unconditional payment thereof, and if payment was refused, procure court decree cancelling the note and satisfying the record as to the deed of trust. Parker v. Maccabees, 191 Mo.App. 514; Sanssenthaler v Surety Co., 193 S.W. 287; Bridges v. Smith, 213 S.W. 860. (2) In the absence of contract neither a court of law or equity can compel a sale or purchase. Williams v Gottschalk, 6 Mo.App. 597; McCormack v. McDonald, 70 Mo.App. 382; Capen v. Garrison, 193 Mo. 341. (3) Plaintiffs' bill should have been dismissed because they neither pleaded nor proved any grounds for injunctive or any other equitable relief. McCray v. Lowry, 25 Mo.App. 247. (4) Plaintiffs in seeking equity failed to do equity and they invoked the aid of equity with unclean hands, and their bill under the evidence should have been dismissed. Schopp v. Schopp, 162 Mo.App. 564; Littleton v. Cunningham, 116 Mo.App. 549; Houtz v. Heelman, 228 Mo. 671; Prum v. White, 162 Mo.App. 606; 21 Corpus Juris, page 183, sec. 164; 10 R. C. L., page 389, sec. 139.
Clarence A. Barnes for respondents.
This is an action in equity whereby plaintiffs asked that the defendant, Bank of Centralia, be required to endorse a note "without recourse" and surrender the same upon receipt of the money found to be due on said note and tendered into court, and that the defendants be enjoined from proceeding with a foreclosure of the deed of trust securing the note.
The plaintiff, Lillie May Rowe, is the insane wife of E. G. Rowe, and Arthur P. Yager is the duly appointed guardian and curator of the said Lillie May Rowe. Lillie May Rowe had been insane for some eighteen years prior to the institution of this suit, although she was released from the hospital at short intervals at different times. She was adjudicated insane and this guardian appointed in January, 1926.
In 1901, E. G. Rowe purchased eighty-four acres of land in Audrain county. He moved thereon, and occupied the same as a homestead up to the date of the institution of this suit. On February 25, 1904, plaintiffs, Lillie May Rowe and E. G. Rowe, executed and delivered to J. T. Mitchell, an officer of the defendant bank, their note for $ 1,600, due five years after date, and bearing six per cent interest. This note was secured by a first deed of trust on the aforesaid real estate. This interest was paid every year up to and including the year 1913, after which there was an endorsement without recourse by J. T. Mitchell. Then the interest payments were endorsed thereon for every year except the year 1917. The defendant, Bank of Centralia, was in possession of and owned the note.
On September 24, 1924, the plaintiff, E. G. Rowe, executed his individual note for $ 1,000, due one year after date, and this note was attempted to be secured by the maker by a second deed of trust on the land aforesaid. This note was endorsed without recourse, and the bank was in possession of and owned this note. Defendant, Barrett, is the trustee named in the first deed of trust.
It appears that the bank advertised the land for sale under the first deed of trust. A notice was served claiming the funds, over and above the first deed of trust to the extent of $ 1,500, as exempt as proceeds of the homestead. After this was done, no sale took place. Then the defendants advertised the land for sale under the second deed of trust, on the 13th day of August, 1926, and under the first deed of trust the sale was set for August 14, 1926. After these sales were thus advertised the plaintiffs instituted this suit.
It appears that one W. T. Johnson, a friend of plaintiffs agreed to advance an amount of money sufficient to pay the principal and interest on the note secured by the first deed of trust, the note to be delivered to him. This money was tendered the bank on the condition that it would endorse the note without recourse and deliver it to the plaintiffs. The bank refused to do this, but stated through its officers, that it would accept the amount of money so tendered, in payment of the note and interest, if it be permitted to cancel the note and satisfy the record as to the first deed of trust. Plaintiffs refused to do this, and brought this suit, asking for equitable relief. The plaintiff's wife did not join in the execution of the second note and deed of trust. The court, after hearing all the evidence, entered a decree requiring the bank to deposit said note with the clerk of the court, without cancelling the same, and without releasing of record the deed of trust securing the same. This deposit to be made for delivery within twenty days of date to the plaintiff, or any one...
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