Schmidt v. Smith

• Decision Date: 31 July 1874
• Parties: FRANK SCHMIDT, Plaintiff in Error, v. J. L. SMITH, Defendant in Error.
• Court: Missouri Supreme Court

57 Mo. 135

FRANK SCHMIDT, Plaintiff in Error,

v.J. L. SMITH, Defendant in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Cole Circuit Court.

E. L. Edwards & Son, for Plaintiff in Error.

I. The deed of trust expressly states, that out of proceeds of sale the trustee should pay debts and costs, and the remainder, if any, should be paid to the plaintiff, “after paying all amounts expended as aforesaid, for taxes and assessments and other purposes.” Now there is no evidence, nor is it contended by the defendant, that they ever paid any taxes or assessments, and we claim that unless the taxes were paid by the beneficiaries in said deed of trust, before the sale by the trustee under the deed of trust, then said taxes were no lien under the deed, and the trustee acted without authority when he paid them. (Scott vs. Shy, 53 Mo., 478.)

Ewing & Smith, for Defendant in Error.

I. The trustee, as the legal owner of the trust estate, was bound to pay the taxes assessed upon the premises, and in the condition of the trust property previous to and at the time of the sale there were no means in the possession or under the control of the trustee, subject to the payment of the taxes due and claimed for him by the collector of the city of Jefferson, other than those derived from the sale of the trust property, out of which said taxes were paid by the trustee. (Hepburne vs. Hepburne, 2 Bradf., 74; Bull vs. McEwen, 1 Baldw. Ct. Ct., 154; 1 Ves. Jr., 337; Hill Tr., 608, 673.)

II. The case of Scott vs. Shy, (53 Mo., 478) is not in point here, for the reason that the deed of trust in this case specially provides for payment of taxes.WAGNER, Judge, delivered the opinion of the court.

The facts in this case are briefly these: The plaintiff was indebted on two several promissory notes in the amount of six thousand dollars, and to secure their payment he executed a deed of trust to defendant on certain real estate in Jefferson City. Default having been made in the payment of the notes, defendant sold the property for seven thousand dollars, and after satisfying the debt and the expenses of the sale, six hundred dollars remained in the hands of the defendant. This amount he paid to the collector of Jefferson City in satisfaction of taxes assessed against the property.

The plaintiff made a demand for the money, claiming it as his, and upon defendant's refusal to pay he brought this action.

On the trial, it was agreed between the parties that the plaintiff was solvent and amply able to pay his debts, and that there was no law making the taxes a lien upon the property.

The court found for the defendant.

It is insisted that the defendant was fully warranted in using the money to pay the taxes after the sale was made, by virtue of a stipulation contained in the deed. The deed of trust contains this provision: “And whereas said Schmidt has agreed with the said party of the third part to cause all taxes and assessments, general and special, and also all United States taxes to be paid whenever imposed upon said property and within the time required by law, and in case there should be any taxes and assessments and United States taxes, or either of them, now in arrears, or in case there should be any default in the punctual payment of the same at any time thereafter, said party of the third part or their assigns, at their option may pay the same or redeem said property, and all amounts so expended...