Rumsey v. People's Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation46 S.W. 144,144 Mo. 175
Decision Date24 May 1898
PartiesRUMSEY v. PEOPLE'S RY. CO. et al.
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

46 S.W. 145

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...

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5 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...162 S.W. (2d) 592; Corby v. Taylor, 35 Mo. 447; Moore v. McHaney, 191 Mo. App. 686, 178 S.W. 258; Rumsey v. Ry. Co., 144 Mo. 175, 46 S.W. 144; Wiggins Ferry Co. v. Ry., 128 Mo. 224, 27 S.W. 568; Lober v. Kansas City, 339 Mo. 1091, 100 S.W. (2d) 267; Coleman v. Kansas City, 156 S.W. (2d) 644......
  • Goedecke v. Gralnick, No. 38997.
    • United States
    • Missouri Supreme Court
    • September 4, 1945
    ...deed. [See Jones on Mortgages, 8th Ed. sec. 2042; 42 C.J. 143, secs. 1738-1739; 37 Am. Jur. 76, sec. 592; Rumsey v. People's R. Co., 144 Mo. 175, l.c. 189, 46 S.W. 144; Sager v. American Investment Co. (Ark.), 280 S.W. 654, l.c. 656.] Thus the premise of the majority opinion, that this matt......
  • State v. Seehorn, No. 20932.
    • United States
    • Court of Appeal of Missouri (US)
    • February 9, 1947
    ...the plaintiff, who is relator here, was entitled forthwith to an execution in conformity with such judgment. Rumsey v. People's Ry. Co., 144 Mo. 175, 46 S.W. 144; Sec. 1316, R.S.Mo. 1939, Mo. R.S.A. No further order of the court was necessary therefor. State ex rel. Capitain et al, v. Grave......
  • White v. Thwing, No. 22482.
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1923
    ...a joint judgment and did not find the amount due the respective respondents requires a reversal. Rumsey v. People's Ry. Co. et al., 144 Mo. 175, 46 S. W. 144, is cited. In that case, a suit to foreclose a mortgage securing 1,000 bonds, numerous interveners set up their several claims. It wa......
  • Request a trial to view additional results
4 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...162 S.W. (2d) 592; Corby v. Taylor, 35 Mo. 447; Moore v. McHaney, 191 Mo. App. 686, 178 S.W. 258; Rumsey v. Ry. Co., 144 Mo. 175, 46 S.W. 144; Wiggins Ferry Co. v. Ry., 128 Mo. 224, 27 S.W. 568; Lober v. Kansas City, 339 Mo. 1091, 100 S.W. (2d) 267; Coleman v. Kansas City, 156 S.W. (2d) 644......
  • State v. Seehorn, No. 20932.
    • United States
    • Court of Appeal of Missouri (US)
    • February 9, 1947
    ...the plaintiff, who is relator here, was entitled forthwith to an execution in conformity with such judgment. Rumsey v. People's Ry. Co., 144 Mo. 175, 46 S.W. 144; Sec. 1316, R.S.Mo. 1939, Mo. R.S.A. No further order of the court was necessary therefor. State ex rel. Capitain et al, v. Grave......
  • White v. Thwing, No. 22482.
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1923
    ...a joint judgment and did not find the amount due the respective respondents requires a reversal. Rumsey v. People's Ry. Co. et al., 144 Mo. 175, 46 S. W. 144, is cited. In that case, a suit to foreclose a mortgage securing 1,000 bonds, numerous interveners set up their several claims. It wa......
  • Rumsey v. People's Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 19, 1899
    ...a former occasion, having been brought by writ of error which was sued out by the People's Railway Company, and will be found reported in 144 Mo. 175, 46 S. W. 144, where a full and clear statement of the facts up to that time may be found. It was then reversed, and remanded to be tried in ......

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