State v. Huck

• Decision Date: 06 April 1922
• Docket Number: No. 22668.,22668.
• Citation: 240 S.W. 236
• Parties: STATE ex rel. MAXWELL INVESTMENT CO. et al. v. HUCK, Judge.
• Court: Missouri Supreme Court

240 S.W. 236

STATE ex rel. MAXWELL INVESTMENT CO. et al. v. HUCK, Judge.

No. 22668.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Motion for Rehearing Overruled. April 29, 1922.

Prohibition by the State, on the relation of the Maxwell Investment Company and others, against Peter H. Huck, Judge of the Circuit Court of St. Francois County. Writ made permanent.

This is an original proceeding instituted in this court by the relators against the respondent, the object of which is to prohibit Judge Huck, judge of the circuit court of St. Francois county, from further proceeding in a certain cause then pending in said court, wherein the Iron Mountain Company, a corporation organized under the laws of Missouri, sued the relators here, the defendants there, seeking an accounting between the respective parties and the cancellation of certain deeds of trust given by the latter to secure certain sums of money described therein, and for general audit.

The pleadings in the case are exceedingly lengthy, yet no more so than is necessary to intelligently present the numerous complications of facts which constitute the basis of this littation, and in my opinion I am unable to see how I could more briefly and clearly present those facts than by substantially copying the pleadings. The petition for the preliminary writ, omitting formal parts, is as follows:

Your relators, the Maxwell Investment Company, the Pleasant Valley Development Company, and the Pioneer Trust Company, respectfully represent to this honorable court that said relators are corporations organized and existing under and by virtue of the laws of the state of Missouri, with their principal offices and places of business in Kansas City, Mo. That relator J. B. Maxwell, trustee, is a resident and citizen of Kansas City, Jackson county, Mo. That relator E. B. McKee is a resident and citizen of St. Louis, Mo. That the respondent, Hon. Peter H. Huck, is now, and has been for some time past, the duly elected, acting, and qualified judge of the St. Francois county circuit court in Farmington, Mo.

That on the 28th day of January, 1921, the Iron Mountain Company, a corporation organized under the laws of the state of Missouri, commenced en action in equity against relators in the circuit court of the county of St. Francois, Mo., returnable to the February term, 1921, thereof, upon which summons was upon said date duly issued by the circuit clerk of said court, commanding all of said relators to be and appear before said court, to be holden within and for the county of St. Francois, at the courthouse in the city of Farmington, in said county, on the 1st day of the next term thereof, to be begun and held the second Monday in February, 1921, and then and there, before the judge of'. said court, to answer the petition of said Iron Mountain Company, a copy of said petition and a copy of said summons being hereto attached as Exhibit A, and made a part hereof.

That said action is a suit in equity, and sets forth that on December 22, 1916, the relator Pleasant Valley Development Company, as the owner of certain real estate known as "Iron Mountain Property," situated in the counties of St. Francois and Iron, in the state of Missouri, executed two certain mortgages to secure a total indebtedness of $375,000.

That the Maxwell Investment Company, agent and trustee, took title to said Iron Mountain property under the first of said mortgages, to secure the sum of $250,000, evidenced by certain first farm mortgage land credit bonds of the said Pleasant Valley Development Company, the terms and conditions of said bonds being fully set forth in said petition hereto attached as Exhibit A. That the second mortgage was to secure the aggregate sum of $125,000, and J. E. Maxwell, trustee, was named trustee in said second mortgage, and. William Chalfant, Jr., of the said state of Pennsylvania, was mentioned therein as the third party thereto. That said second mortgage conveyed all of said Iron Mountain property to said trustee in trust (subject to the first mortgage) to secure 10 second farm mortgage land credit bonds of the said Pleasant Valley Development Company, which are fully described in said petition, and which said second mortgage bonds mature December 20, 1926, and bear interest at the rate of 5 per cent. per annum, payable annually at the office of said Maxwell Investment Company in Kansas City, Mo.

That upon April 23, 1919, said Pleasant Valley Development Company sold the said Iron Mountain property, comprising some 16,000 acres, more or less, in said counties of Iron and St. Francois, in the state of Missouri, to one W. J. Elledge, under the terms of a certain written agreement, and under the terms of which said Elledge agreed to pay $200,000 in cash and to assume the first mortgage indebtedness of $250,000, with interest thereon from May 1, 1919, which payments were to he made in cash, and from the proceeds from ore sold, to said J. E. Maxwell, as trustee, at his office in Kansas City, Mo.

That, under the terms of said contract of sale and purchase, a deed was deposited in escrow with the Pioneer Trust Company of Kansas City, Mo., together with a copy of the sales agreement, which provided that, in case of default thereunder, the said Pioneer Trust Company should deliver the deed and agreement to the Pleasant Valley Development Company, but, if said Elledge performed his part of the agreement, on full performance thereof the deed and agreement should be delivered to him. That, upon full performance of the contract, said petition alleges, said Pleasant Valley Development Company agreed to release the second mortgage of $125,000 upon the property aforesaid.

That said agreement also provided that receipts for payments made by said Elledge under the contract should be delivered to the depositary by the said J. E. Maxwell, trustee, and, when the contract price of $200,000 had been paid, the contract and deed were to be delivered to said Elledge, but, if said Elledge failed to make such payments as provided in said contract, on 10 days' written notice the said contract and deed were to be delivered to the Pleasant Valley Development Company and J. E. Maxwell, trustee.

That, on February 13, 1920, notice was given to said Elledge of the default, under the terms of said contract, for failure to pay the purchase price installments of $5,000 per month, due upon the 1st day of November, 1919, the 1st day of December, 1919, the 1st day of January, 1920, and the 1st day of February, 1920. That, on or about May 20th, 1920, a settlement was reached with said Pleasant Valley Development Company and the relators Maxwell Investment Company and J. E. Maxwell, trustee, of the said defaults accruing under the terms of said contract by the payment of $44,150 by the trustee for the promoters of the Iron Mountain Company, a corporation which subsequently acquired the title to all of said land, and which instituted said suit in the circuit court of St. Francois, county, Mo. That said forfeiture was canceled by the said Pleasant Valley Development Company, and receipts executed for the payments made by the said trustee and promoter of the said Iron Mountain Company.

That an assignment of said contract to Leonard A. Busby was, by resolution of the board of directors of the said Pleasant Valley Development Company, authorized and approved, and, by written instrument, dated June 17, 1920, the said Leonard A. Busby, trustee, transferred and conveyed to said Iron Mountain Company all rights acquired as assignee of said contract in and to said land.

That said petition then proceeds at length to set out certain payments and credits realized from the sale of property which should have been applied by said J. E. Maxwell, trustee, and said Maxwell Investment Company, trustee and agent, upon the notes which said mortgages were executed to secure, which payments, said petition alleges, were not made known to the agents and representatives of the said Iron Mountain Company, and a total of $7,175 paid by the said Leonard A. Busby, trustee, on May 20, 1920, should have been credited upon said notes and contract. That the payments made upon said notes as credits thereon will be lost to the Iron Mountain Company as the purchaser thereof, unless the said Pleasant Valley Development Company and the said K. E. McKee and the said Maxwell Investment Company, trustee and agent, be compelled to account for the sum or sums which, it is alleged, were paid and not credited upon said notes.

Said petition further alleges that said Pleasant Valley Development Company threatens to declare a forfeiture and annulment of the Elledge contract, and will demand of the said Pioneer Trust Company the return of the deed and contract deposited with it, and the said Maxwell Investment Company, trustee and agent, and the said J. E. Maxwell, trustee, will, unless compelled and directed by the court, refuse to apply the moneys placed in its and his hands as available for, and required for, the first mortgage bonds, unless enjoined and compelled to apply same, as a credit on said first mortgage notes.

Said petition also alleges: That the accrued and unpaid interest on the second mortgage land credit bonds, secured by the second mortgage, amounts to approximately $30,000, and, in the event of the failure to pay said interest, the whole of the principal of said bonds may, at the election of the holders of said bonds, be declared to be at once due and payable; that, if the default in the interest on said second mortgage bonds should continue until December 20, 1926, the date of the maturity of the principal of said bonds, the total amount of said interest, with the 8 per cent. interest on overdue coupons, will amount to approximately $85,000; that J. E. Maxwell, trustee, claims that he has, in the past, and will continue, in the future, to pay to said E. E. McKee 37½ per cent. of all sums paid and to be paid by plaintiff to said...