Sanders v. Kaster
| Decision Date | 10 April 1920 |
| Docket Number | 21085 |
| Citation | 222 S.W. 133 |
| Parties | August Sanders, Respondent. v. N.L. Kaster, Appellant |
| Court | Missouri Supreme Court |
Affirmed.
Action to foreclose a deed of trust on 160 acres of land in Schuyler county, Mo.
The petition is in conventional form, but has therein the allegation that N.L. Kaster, one of the makers of the note secured by the deed of trust, and also one of the makers of the deed of trust, was in 1913 declared by the Probate Court of Schuyler county, to be a person of unsound mind, and that John Sloop was appointed as his guardian. The petition alleges two interest payments upon the note of $7600, of dates March 8th 1912, and March 17th 1913, and for the sum of $456.00 each. The note was dated March 10th 1911.
By answer the defendant avers that he was read judged by the Probate Court of Schuyler county to be a person of sound mine on March 30th 1916. This was some two weeks after the filing of the suit, and service of process in the case. In his answer, after a general denial defendant, N.L. Kaster, avers that he was a person of unsound mind at the time the note and dead of trust were signed, and had been for some months prior thereto, and continued to be for some months thereafter, all to the full knowledge of the plaintiff. He asks that the deed of trust and note be cancelled and for naught held, and in a further count of his answer he asks to be adjudged the two payments of interest mentioned in plaintiff's petition. Defendant also avers that he received no benefit or money from said note and deed of trust. The record shows the filing of a reply. The additional abstract of the record shows the reply, and in it a plea of res adjudicata. Upon a trial the court found the issues for the plaintiff, and ordered defendants equity of redemption foreclosed, to satisfy an adjudged sum of $10,871.46, including an attorney's fee of $750.00.
After defendant was adjudged to be of sound mind, he filed answer, and the case proceeded as between plaintiff and defendant. On change of venue the trial was had in Putnam county. From the adverse decree, defendant has appealed. Further detail of facts will be left to the opinion.
It will be noted that the trustee in the deed of trust was not made a party to this foreclosure proceeding, nor is Bert Kaster, the wife of H.L. Kaster, made a party, although she signed the same, as well as the note secured thereby. It develops in the testimony that Mrs. Kaster is the daughter of plaintiff, and that she had later sued for divorce, and had obtained judgment of divorce and alimony in the sum of §4000.00, which judgment was settled during the guardianship of Kaster at the sum of $3500.00. Of this we may have occasion to speak later. we mention it now as tending to show the status of the parties, at the institution of the suit.
Appellant contends that the failure to make the strutee party renders this judgment void, and this is the point we have in view now. Kaster was the owner of the land, and during the life of Kaster, the wife only had dower initiate. How this was determined by the divorce suit does not appear in this record. There may be some-thing in that decree which precludes her from further interest in Kaster's property. But this is adrift from the point son this judgment stand, absent the presence of the trustee as a party? Was his presence as a party so necessary as to render the judgment void? This is the point we now have before us.
The dead of trust is this case is the usual one, with power of sale in the trustee. It occurs to us that the statutes fully answer the contention of the appellant. The pertinent portion of sec. 2829 R.S. 1909, read:
"Deeds of trust in the nature of mortgages may, at the option of cestuis que trust, their executors or administrators or assigns, be foreclosed by them, and the property sold in the same manner in all respects as in case of mortgages.."
Note that this section authorises the "cestuis que trust, their executors or administrators or assigns" to foreclose such deed of trust," and the property sold in the same manner of all respects as in case of mortgages. The foreclosure of mortgages is governed by sec. 2828 R.S. 1909, which reads:
"All mortgagees of real estate or personal estate, including leasehold interests, when the debt or damages secured amounts to fifty dollars or more, may file a petition in the office of the circuit court against the mortgagor and the actual tenants or occupiers of such real estate, or persons in possession of personal property, setting forth the substance of the mortgage deed, and praying that judgment may be rendered for the debt or damages, and that the equity of dedemption may be foreclosed, and the mortgaged property sold to satisfy the amount due."
The parties to this kind of suit are the mortgagee, as plaintiff, and the mortgagor, as defendant. If there are tenants, then the tenants are to be made defendants. In the case before us there were no question of tenants. The maker of the deed of trust and his legal guardian were made the parties defendants. Sec. 2829, supra, gives to the cestuis que trust in these deeds of trust, the same rights to foreclose as is giver to mortgagees in the case of mortgages. In other words they can, in court, do just when what they could request their trustee to do by way of a sale under the instrument. The section contemplates two methods of foreclosing the equity of redemption, i.e. (1) by a suit in court by the beneficiary in the deed of trust, as plaintiff, and the maker of a trust deed, as defendant; and (2) by advertisement and sale by the truster under the terms of the deed of trust.
The reference is sec. 2829 to foreclosures of mortgages compels us to read secs. 2828 and 2829 together in order to get the full meaning of the latter section. When so read together, section 2829 means that if the beneficiary in the ordinary deed of trust prefers to foreclose by court action, then such beneficiary is the sole necessary party plaintiff, and the maker of the deed of trust the sole necessary party defendant, unless there are tenants, (a question not involved here) in which case the tenants should be made parties defendant. The statutes go no further. So that we conclude, that it was unnecessary to make the trustee a party, under the provisions of these sections. We are cited to the provisions of sec. 2859, R.S. 1909, but an examination of that section will show that it does not apply to a deed of trust such as we have here under consideration. This statute refers is deeds of trust in which a foreign corporation or individual is a trustee.
It is true that we say in cases that the trustee has the bare naked legal title, but on the other hand the can't divest himself of that bare naked legal title, nor the maker of the deed of trust of his equity of redemption, save and except he be requested so to do by the beneficiary in the instrument. He can only act when he gels the command from the real party in interest, i.e. the beneficiary. But as said above the statute, sec. 2829, supra, contemplates two methods of reaching the same end. In one the trustee is a factor, because at the request of the beneficiary he can sell the property and pass title. In the other the beneficiary is permitted to not for himself the have the sale made under a decree of court. Both Sales obtain the same result. In Rogers vs. Tucker 94 Mo. l. c. 352, 7 S.W. 417, it is said:
Now, bearing in mind that sec. 2829 R.S. 1909, by direct reference incorporates therein sec. 2828, supra, much light is thrown upon the question, by the opinion of Valliant, J. in State ex. rel. vs. Evans, 176 Mo. l.c. 316, 76 S.W. 915, whereat he says:
He was discussing sec. 4342 R.S. 1839, which is section 2828, R.S 1909, which we have quoted, supra; but as the method of procedure under sec. 2829, the section under which this action is brought, is to be determined by sec. 2828, by direct reference thereto, the langange used is of high import here. But why go further? The terms of the statutes (secs. 2828 and 2829, when construed together, as they must be, because that latter refers to the former)...
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