Rutherford v. Sample

• Citation: 186 Mo. App. 469,171 S.W. 578
• Decision Date: 12 December 1914
• Docket Number: No. 1428.,1428.
• Parties: RUTHERFORD v. SAMPLE.
• Court: Court of Appeal of Missouri (US)

171 S.W. 578

186 Mo. A. 469

RUTHERFORD v. SAMPLE.

No. 1428.

Springfield Court of Appeals. Missouri.

December 12, 1914.

1. JUDGMENT (§ 252) — APPLICABILITY TO PETITION.

Where plaintiff's petition justifies the relief to which plaintiff is entitled, it may be granted, though somewhat different from the specific relief sought.

2. MORTGAGES (§ 201) — INSURANCE BY MORTGAGEE — PROCEEDS — INTEREST — CREDIT.

Where a mortgagee does not insure his own interest, but takes out insurance for and at the expense of the mortgagor, the mortgagee, on collecting the policy after loss, is bound to account to the mortgagor for the proceeds.

3. MORTGAGES (§ 518) — DEED OF TRUST — ACCOUNTING.

Where the beneficiary under a deed of trust purchased a special tax bill against the property, paid general taxes, insurance premiums, etc., prior to a foreclosure sale, and then collected insurance on the destruction of the buildings, he was bound to credit his bid at the sale under the deed on the costs of the sale and against the payments made by him, and credit any balance remaining together with the insurance collected, on the note, paying any balance then remaining after satisfying the note to the grantor, and his failure to do so rendered him liable to the grantor for such balance, with interest at 6 per cent.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by N. B. Rutherford, as administratrix of the estate of B. F. Rutherford, against T. G. Sample. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Duncan & McCarty, of Caruthersville, and J. R. Brewer, of New Madrid, for appellant. Jere S. Gossom, of Caruthersville, for respondent.

ROBERTSON, P. J.

B. F. Rutherford, being the owner of a lot in the city of Caruthersville, executed, with his wife, under date of December 19, 1908, to one Sam Jeffress, as trustee, a deed of trust thereon to secure the payment of his note for $500 of even date therewith to the defendant, due one year after its date, providing for interest at the rate of 8 per cent. per annum, compounded annually if not so paid. Only one year's interest was paid on this, presumably the interest for the first year. A sidewalk was built along this property, a special tax bill issued therefor to D. E. Greene, suit brought thereon against Rutherford and defendant, judgment obtained, special execution issued, the property advertised, and at the sale on July 19, 1911, it was knocked off to W. R. Lacy on his bid of $350 or $375. The sheriff's deed was not executed until March 7, 1913, more than two months after the suit at bar was commenced, and after the term of office of the then sheriff had expired. The sheriff's deed was made to the defendant. After this sale the defendant had the dwelling house on the lot, then occupied by Rutherford as his home, insured against loss by fire, in defendant's name as owner, for the sum of $1,000. The defendant caused the property to be advertised for sale under the deed of trust for January 2, 1912. At about 4 o'clock on the morning of the day of the sale the house burned; the sale was had, the defendant bid thereat, and the property was sold to him for $418, and on February 1, 1912, he received the trustee's deed. Thereafter the defendant collected about $950 from the insurance company for the loss of said building. Rutherford and Lacy testified that it was arranged between them that Rutherford should have the property released for the claim of the special tax bill, upon Rutherford paying him the amount of his judgment and costs, all amounting to $181.67. Lacy and Rutherford both testified that the sheriff was directed to make a deed to Rutherford. Rutherford, not having the money with which to settle with Lacy, arranged with defendant to make the payment, which defendant did, and the sheriff testified that Rutherford directed the deed to be made to the defendant. No part of Lacy's bid was credited on the note. The sheriff testified that he thought he took a receipt from Rutherford for the difference between the amount that was due Lacy on his tax bill, including the court costs, and the amount of the bid, but did not produce the receipt at the trial. Defendant insists that he made the arrangement with the holder of the tax bill for the settlement of the claim, and was implicated in no way with Rutherford. The insurance agent testified that he solicited Rutherford for insurance on the building, but that Rutherford told him that defendant owned the property, "or words to that effect; he said if it was insured, Mr. Sample would have to insure it." Defendant testified that when the insurance was adjusted, Rutherford disclaimed any interest in the property, and the insurance agent testified that he did not remember anything of the kind being stated by Rutherford. About two months before the sale under the deed of trust the defendant wrote to Rutherford as follows:

"Mr. Ben Rutherford — Dear Sir. Now I have turned that over to the Bank of Caruthersville. I told you I would give you 2 months and you told me if I would wait one more...