Rumsey v. People's Ry. Co.

• Decision Date: 24 May 1898
• Citation: 46 S.W. 144,144 Mo. 175
• Parties: RUMSEY v. PEOPLE'S RY. CO. et al.
• Court: Missouri Supreme Court

46 S.W. 144

144 Mo. 175

RUMSEY v. PEOPLE'S RY. CO. et al.

Supreme Court of Missouri.

May 24, 1898.

DECREE — FINDINGS — SUFFICIENCY — FORECLOSURE.

1. A decree rendered on the pleadings properly contains findings based on averments in an intervening petition, not denied in the answer.

2. A finding of the court based on the pleadings that interveners are the owners of certain specified bonds is erroneous where the pleadings do not specify or enumerate the bonds.

3. A decree based on a petition of intervention, asserting ownership of certain bonds, and setting out the names of the owners and number of bonds belonging to each, is not responsive, which finds the interveners to be the owners, without finding the number of bonds belonging to each.

4. A decree is erroneous which, in establishing the ownership of bonds, describes them by numbers, but omits many of the numbers, and eight times uses the word "inclusive," it being impossible to tell what numbers were included.

5. A decree is erroneous which finds a greater amount of interest due than is claimed in the pleadings.

6. A decree in foreclosure is erroneous which does not find the exact amount due to each of plaintiffs.

7. In foreclosure proceedings the order of sale is not required to fix a short day for redemption before sale.

8. Rev. St. 1889, § 7079, providing for a redemption after sale under a trust deed without foreclosure where the cestui que trust is the purchaser, does not apply to a sale under foreclosure.

In banc. Error from St. Louis circuit court.

Bill by Lewis M. Rumsey against the People's Railway Company and others. There was a decree for plaintiff, and defendants bring error. Reversed.

R. E. Rombauer and C. H. Krum, for plaintiffs in error. Noble & Shields and A. Arnstein, for defendant in error.

GANTT, C. J.

On the 6th day of March, 1897, the plaintiff commenced a suit in the circuit court of the city of St. Louis, for himself and all other holders of third mortgage bonds, to foreclose what is known as the "third mortgage deed of trust" executed by the People's Railway Company to C. C. Maffitt, as trustee, to secure certain bonds of said company in said mortgage deed described. In his petition he alleged the incorporation of the People's Railway Company under the laws of this state; that C. C. Maffitt was the trustee in said "third mortgage deed of trust"; that said mortgage was recorded in Book 917, p. 27, and following, in the office of the recorder of deeds of the city of St. Louis; that the People's Railway Company was duly authorized to construct, maintain, and operate a street railway in the city of St. Louis, and has constructed said railway, and was engaged in transporting passengers over its line, commencing at the intersection of Morgan and Fourth streets, and running south on Fourth, to Chouteau avenue, west and southwest on Chouteau, Carondelet, Park, and Mississippi avenues, to La Fayette, and thence west to Grand avenue and to Tower Grove Park; and its ownership of various tracts and lots of ground in said city, specifically describing each; and that it had a certain leasehold in block 484 in said city. Plaintiff then alleged: That the bonded indebtedness and fixed obligations of the defendant the People's Railway Company amount to the sum of $1,000,000, evidenced as follows: (1) By a series of 125 bonds, of the principal sum of $1,000 each, all of them dated May 1, 1882, payable to Julius S. Walsh or bearer (but capable of being registered), payable 20 years after said date, and bearing interest at the rate of 6 per cent. per annum, evidenced by a series of interest coupons thereto attached, the said railway company having the right to redeem said bonds at any time after May 1, 1892, which said bonds are secured by a mortgage deed of trust upon the roadbed, rolling stock, real estate, franchises, and all other properties of the defendant the People's Railway Company, hereinafter described, executed by the defendant the People's Railway Company, to Thomas E. Tutt and John Jackson, as trustees, which deed of trust is recorded in Book 667, at page 469 and following, in the office of the recorder of deeds of the city of St. Louis; (2) by a series of 75 bonds for $1,000 each, all of them dated May 1, 1886, and payable at all events in 16 years from the date thereof, and at the option of the said defendant the People's Railway Company, at any time after the 1st of May, 1896, and bearing interest at the rate of 7 per cent. per annum, which interest is represented by a series of semiannual interest coupons attached thereto, which said bonds are secured by a mortgage deed of trust upon said roadbed, real estate, rolling stock, franchises, and all other properties of the defendant the People's Railway Company, hereinafter described, executed by the defendant the People's Railway Company, to Julius S. Walsh and John R. Lionberger, trustees, which deed of trust is recorded in Book 867 at page 375 and following, in the office of the recorder of deeds of the city of St. Louis; (3) by a series of 1,000 bonds, for the principal sum of $1,000 each, of which series of bonds 200 have never been issued, but remain in the treasury of said company, bearing date of the 10th of July, 1889, and payable on the 1st day of July, 1904, or, at the option of the defendant the People's Railway Company, at any time after the 1st day of July, 1899, and bearing interest at the rate of 6 per cent. per annum, payable on the 1st day of January, and on the 1st day of July in each year, which interest is represented by a series of semiannual coupons attached to each of said bonds, which said bonds are secured by the mortgage deed of trust already spoken of and described as the "third mortgage deed of trust." That the interest which has accrued on said first and second mortgage bonds has not been entirely paid, but that about $3,000 remain of such interest due and unpaid. That the defendant the People's Railway Company has also a floating debt, incurred in the purchase of supplies, in the payment of labor, etc., payable on demand, amounting to the sum of $240,000, which floating debt is largely due, and in large sums, to citizens of other states than the state of Missouri. That the said People's Railway Company has a capital stock of $1,000,000, divided into 20,000 shares, of $50 each, which said shares are scattered among numerous holders to this plaintiff unknown. That the bonded indebtedness of said company, secured by the first, second, and third mortgages aforesaid, and amounting in the aggregate to the principal sum of $1,000,000, is held by different individuals and corporations scattered throughout the United States and Europe, and the holders of said bonds (except this plaintiff) are unknown to him, and are not discoverable by him. That there is also due to the city of St. Louis and state of Missouri a large amount for public taxes and assessments, state and municipal, lawfully assessed against the property of the defendant the People's Railway Company, which taxes are past due, and are subject to penalties because of their remaining unpaid, and which taxes are by law a first lien upon the properties of the said defendant. Plaintiff then alleged that, in pursuance of said third mortgage deed, the People's Railway Company executed 1,000 bonds, numbered from 1 to 1,000 inclusive, aggregating $1,000,000, each bearing date July 10, 1889, payable 15 years after date; of this number, 800 were sold and negotiated, and 200 were never negotiated, but remain in the treasury; that, of the 800 bonds so issued, plaintiff is the lawful holder of 340, aggregating $340,000. Plaintiff then assigns, as breaches of the conditions of said mortgage — First, that the said railway has not paid the semiannual interest due July 10, 1896, and January 10, 1897, and that defendant had no funds to pay the interest due July 10, 1897; secondly, that said company has not paid the public taxes lawfully assessed against the property conveyed by said mortgage deed to the amount of $30,000; third, that it had not performed its covenant to take up and liquidate the first and second mortgage bonds with the 200 bonds remaining in the treasury, and the past interest on said bonds amounted to $3,000, and that the floating debt of said company amounted to $240,000 for materials furnished, and the company had no means of paying it. Plaintiff charged that, by the terms of the said third mortgage, on default in the payment of either bonds or coupons for 30 days, or failure or neglect to pay said taxes or assessments when due and payable, the holders of said bonds, at their option, might consider said bonds due, though not otherwise due according to their tenor, and might require the said trustee, Maffitt, or his successor in said trust, to sell said property; and plaintiff averred he now elected to consider his said bonds due on account of the failure to pay said interest and taxes as aforesaid, and further averred that said trustee could only sell when required by a majority of the holders of the said third mortgage bonds and coupons; that said third mortgage bonds and coupons are widely scattered, and in the hands of persons unknown; that, for this reason, a majority of the same cannot be collected together for the purpose of requiring the said trustee to proceed to sell the property by advertisement and public sale, as provided in said deed of trust; and that, without the consent of a majority in value of the holders of said...