Staples v. Shackleford

• Decision Date: 14 June 1899
• Citation: 150 Mo. 471,51 S.W. 1032
• Parties: STAPLES v. SHACKLEFORD et al.
• Court: Missouri Supreme Court

51 S.W. 1032

150 Mo. 471

STAPLES v. SHACKLEFORD et al.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

ACTION TO REDEEM — PARTIES — PETITION — SUFFICIENCY — TRUST DEED — TRUSTEES' AGREEMENT WITH MORTGAGOR — RIGHT TO SUE — DEEDS — DEFECTIVE ACKNOWLEDGMENT — EFFECT.

1. It appeared by the petition in an action to redeem that the land in controversy had been sold under a trust deed given to a guardian to secure a loan from his ward's estate. The ward was of age. The guardian was discharged, and had no interest in the land. He was not in a position to afford plaintiff the relief sought, and no personal judgment was asked against him. No claim was made that the land had been obtained through his misconduct, but execution of the trustee's deed to his ward had been acknowledged before him as notary public. Held, that he was not a necessary or proper party.

2. A faulty acknowledgment only affects the registration of a deed and notice thereunder, and it does not affect the conveyance between the parties themselves.

3. A petition to redeem from a sale under a trust deed showing, as to the beneficiary and her husband, that she had done nothing more than receive what was due her from sales made by the trustee, and that he had no interest in the matter except as her husband, and that neither had nor claimed any further interest in the property, and complaining only of acts of the trustee in violating an agreement made with the plaintiff contrary to the terms of the deed, and without the beneficiary's knowledge, and calling on the trustee to account, states no cause of action against the beneficiary or her husband.

4. Conceding that a mortgagor under a trust deed may enforce the trustee's agreement to so handle the property as to control the title in case it should not bring sufficient at public sale to satisfy the debt, and to sell the same at private sale, and account to the mortgagor for the surplus, the trustee's liability thereunder is not shown in an action by the mortgagor against him by a petition showing that only a portion of the land has been sold, and not alleging that there is any surplus to which plaintiff is entitled.

Error to circuit court, Cooper county; George F. Longan, Special Judge.

Action by Thomas E. Staples against D. W. Shackleford and others to set aside a conveyance, for an accounting, and for redemption from a sale under a trust deed. From a judgment of dismissal entered on sustaining demurrers to the petition, plaintiff brings error. Affirmed.

E. R. Hayden and W. D. Bush, for plaintiff in error. W. M. Williams, for defendants in error.

ROBINSON, J.

Plaintiff commenced this action in the Cooper county circuit court on the 19th day of April, 1895, and afterwards, on the 14th day of June, filed an amended petition, which is the basis of this controversy. Defendant D. W. Shackleford filed an answer. Defendant W. Speed Stephens demurred on the grounds: First, that he was not a necessary or proper party defendant; second, because the petition failed to state facts sufficient to constitute a cause of action against him; third, because the allegations of the petition showed that he had no connection with, or personal interest in, any of the matters or things mentioned in the complaint, or the subject of the litigation; fourth, that the petition showed that at the time of the matters complained of he was guardian of defendant Rhoda E. Johnson, that he has no personal interest in the subject-matter of the controversy, and was not sued in his trust capacity. Defendants Rhoda E. Johnson and Wilbur T. Johnson filed their separate demurrer upon the ground that the petition failed to state facts sufficient to constitute a cause of action against them. Both of these demurrers were sustained by the trial court, whereupon, the plaintiff declining to plead further, a judgment of dismissal was entered against him and in favor of all defendants, and plaintiff brings the case to this court by writ of error.

This amended petition is an extremely voluminous document, very inartfully and awkwardly prepared, and replete with unnecessary and useless verbiage. The grounds of plaintiff's cause of action are not succinctly or clearly set forth, but are arrived at by much circumlocution and indefinite phrases. The substantial averments are as follows: That Rhoda E. Johnson and Wilbur Johnson are husband and wife, the former's name prior to their marriage being Rhoda E. Stephens; that during her minority her estate was in the hands of her brother, W. Speed Stephens, as her guardian; and that she subsequently became of age, and her brother's guardianship ceased to exist. It is then alleged that on the 19th day of August, 1886, plaintiff, being seised in fee of certain real estate situate in Cooper county, Mo., containing 120 acres, borrowed from the estate of Rhoda E. Stephens, through her guardian, W. Speed Stephens, the sum of $1,250, and gave his note therefor, payable one year after date, with compound interest thereon at the rate of 9 per cent. per annum, and secured the same by deed of trust on said real estate; and in the deed of trust above mentioned defendant Shackleford was named as trustee, and vested with power to sell the mortgaged premises upon the failure of plaintiff to pay the note at maturity. It is then further alleged "that the defendant D. W. Shackleford well knew of the financial distress in which plaintiff was involved at the time he executed the said deed of trust to secure the payment of the promissory note, and said defendant also well knew of the fears felt and expressed by the plaintiff that, in the event of the sale of his said lands under the said deed of trust, and the purchase of them by a stranger at a price greatly below their value, plaintiff's right of redemption would be lost, and a greater part of his said indebtedness would remain unpaid, etc.; that, to allay plaintiff's fears, the defendant Shackleford, knowing said lands to be of greater value than the said indebtedness, assured him that his fears were groundless, for that all the defendant Stephens, the guardian, etc., desired, was the payment of said indebtedness; and that he (defendant Shackleford), in making sale of said lands under the deed of trust, would use his best endeavors to accomplish that end, and no more, and, if it sold for more than sufficient, he would account to the plaintiff for the same, and it was then and there further understood by and between plaintiff and defendant that if said lands, when sold as aforesaid, should not sell for a sum sufficient to pay said indebtedness, then, and in that event, the said lands should be sold at private sale, if a purchaser could be found within a reasonable time willing to pay more than the sum realized by public sale under said deed of trust, and the plaintiff should have whatever benefits should or might result from such resale at private sale; that, plaintiff having failed to pay the said promissory note when it fell due, the said Shackleford, as trustee, so plaintiff has been informed, advertised said lands for sale on the 3d day of January, 1891, under the said deed of trust, at public vendue, at the place named in the said deed, and that at said sale said lands had been `knocked off in a lump' to Rhoda E. Stephens, the ward of the defendant W. Speed Stephens, now the defendant Rhoda E. Johnson, for the greatly inadequate sum of $700; and that on the same day the said defendant D. W. Shackleford, as trustee, executed and delivered to her his deed in fee to said lands." The petition then avers "that plaintiff, not being possessed of sufficient means to pay off the indebtedness and redeem the lands, failed to attend the sale, or have any other person do so for him; that the lands were worth $20 per acre, and the indebtedness secured by the...