Swabey v. Boyers

• Decision Date: 09 April 1918
• Docket Number: No. 19105.,19105.
• Citation: 203 S.W. 204,274 Mo. 332
• Parties: SWABEY v. BOYERS.
• Court: Missouri Supreme Court

203 S.W. 204

274 Mo. 332

SWABEY v. BOYERS.

No. 19105.

Supreme Court of Missouri, Division No. 2.

April 9, 1918

Rehearing Denied April 26, 1918.

Appeal from St. Louis Circuit Court ; Thomas C. Hennings, Judge.

Ejectment by Amelia Swabey against John A. Boyers. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

James T. Roberts, of St. Louis, for appellant. O. J.

Mudd, of St. Louis, for respondent.

WHITE, C.

The plaintiff recovered in ejectment the judgment from which the defendant appeals. The plaintiff claims title to the land in controversy under a trustee's deed made in foreclosure of deed of trust executed by the defendant February 23, 1897, of which land the defendant at that date was owner in fee. The foreclosure took place in May, 1914. The deed of trust executed by the defendant conveyed the property to Henry Kotthoff, party of the second part, in trust to secure a debt due William C. Eichlers. The plaintiff herein became the holder of the note secured, and was such at the time of the foreclosure. The granting clause of the deed of trust is in the usual form, and after the description the habendum is as follows:

"To have and to hold the same together with the appurtenances to the said party of the second part and to his successors hereinafter designated and to the assigns of him and his successor, forever."

The deed of trust then describes the debt, etc., and provides that:

"The said party of the second part, or in case of his absence, death, refusal to act or disability in any wise, the then acting sheriff of the city of St. Louis, Missouri, at the request of the legal holder of said notes may proceed to sell," etc., and upon such sale "shall execute a deed in fee simple of the property sold to the purchaser or purchasers thereof, and any deed made by the trustee or his successor in pursuance of the powers herein granted, and all recitals therein contained, shall be everywhere received as prima facie evidence of such facts."

We have italicized the words to which special attention is directed in the argument. The trustee, Henry Kotthoff, died, and on May 5, 1914, upon the affidavit of the plaintiff (beneficiary in the deed of trust) stating that fact, the circuit court of the city of St. Louis appointed John J. Wanstrtath trustee to execute said deed of trust. Wanstrath, as trustee, advertised the property for sale in due form, and sold the same on the 29th day of May, 1914. The plaintiff became the purchaser and conveyance was made to her.

The statutes, sections 11919 and 11920 have the following provisions relating to deeds of trust upon which respondent relies for the legality of Wanstrath's appointment:

"If any trustee in any deed of trust, to secure the payment of a debt * * * shall die, * * * any person interested in the debt * * * if it be a deed of trust, to secure the payment of a debt * * * may present his or their affidavit, stating the facts of the case, specifically, to the circuit court of the county in which the property * * * is situated."

Section 11920:

"If such court shall be satisfied that the facts stated in such affidavit are true, it shall, in case of a deed of trust given to secure the payment of a debt, or other liability, make an order appointing the sheriff, or some other suitable person of the county, trustee to execute such deed of trust, in place of the original trustees; and thereupon such sheriff, or other suitable person, appointed by said court, shall be possessed of all the rights, powers and authority possessed by the original trustee, under the deed of trust."

I. It is claimed by the appellant that on the death of the trustee, the deed of trust made the sheriff successor, vesting in him as

such the title and the power of sale, and the court had no authority to appoint a trustee except upon the refusal or inability of the sheriff to execute the trust. It is true, as respondent asserts, that laws in force at the time and place of making the contract which affect its validity, performance, discharge, or enforcement enter into and form a part of it as if they were expressly referred to or incorporated within the terms of the contract. 6 R. C. L. Contracts, § 243 ; Christian v. Insurance Co., 143 Mo. 460, loc. cit. 465, 45 S. W. 268; State ex rel. v. Smith, 173 Mo. 398, loc. cit. 420, 73 S. W. 211; Havens v. Fire Ins. Co., 123 Mo. 403, loc. cit. 416, 417, 27 S. W. 718, 26 L. R. A. 107, 45 Am. St. Rep. 570; Kleeman Co. v. Casualty Co., 177 Mo. App. 397, 164 S. W. 167; Northern Pacific Ry. Co. v. Wall, 241 U. S. 87, loc. cit. 91, 36 Sup. Ct. 493, 60 L. Ed. 905; Walker v. Whitehead, 16 Wall, loc. cit. 317, 21 L. Ed. 357.

This rule is made to apply; it seems, to every kind of contract which is the subject of statutory enactment. Taking it as applicable to this case, and reading these statutes into the deed of trust as a part of its provisions, and construing, them in connection with the other provisions quoted above, it becomes necessary to ascertain on what contingency the court could appoint a trustee with authority to discharge the trust. These provisions of the deed of trust must be harmonized with the statute so as to give effect to all of them, if possible.

Respondent contends that the sheriff is not made alternative trustee by the terms of the deed of trust, but is merely given the power to sell ; that it is a grant of a naked power, without the estate such as is vested in a trustee, and therefore on the death of Kotthoff there is no trustee to execute the trust in its entirety, and the court may appoint. This court has held that the provision in a deed of trust, to the effect that on the death of the trustee the then sheriff may sell, means the sheriff who is such at the time the foreclosure sale is desired. And it was held also that the sheriff is not, by the deed of trust, vested with the title on the failure of the trustee, but merely is given the power and right to sell. Miller v. Bank, 235 Mo. 522, loc. cit. 530, 139 S. W. 192. That case mentions the case of McNutt v. Life Ins. Co., 181 Mo. 94, 98, 79 S. W. 703, 704, and states that it has been overruled. In the latter case the deed of trust provided that upon death or refusal of the trustee to act, another trustee who was named should execute the trust, and in case of the latter's death, inability or refusal to act, "then the (then) sheriff of said county of Jackson and state of Missouri (who shall thereupon become their successor to the title to said property, and the same become vested in him in trust for the purposes and objects of these presents, and with all the powers, duties and obligations thereof), may at the request of the holder of said note proceed to sell," etc. The court says (181 Mo. 99, 79 S. W. 704):

"That the title which the sheriff takes in such circumstances, he takes as an individual, and not officially, and it remains in him until divested by his death, or other disqualification, or by the payment of the debt"

—and held, as a necessary consequence, that "the then sheriff," means the person who was sheriff at the time of the death, removal or inability of the trustee.

The case of Feller v. Lee, 225 Mo. 319, 124 S. W. 1129, is referred to as overruling the McNutt Case. There the conveyance was made to the sheriff of Webster county, party of the second part, no name mentioned, with habendum, "to have and to hold the same with the appurtenances to the party of the second part, and to his successor or successors in trust, and to his or their grantees and assigns forever." 225 Mo. 328, 124 S. W. 1132. It then provides that in case of the absence, death, refusal to act, or disability in any wise of the party of the second part, the then acting sheriff of Webster county, Mo., might sell. 225 Mo. 329, 124 S. W. 1129. The court says (225 Mo. 332, 124 S. W. 1133):

"Not only so, but a succession of trustees is carefully provided. In certain named contingencies the original trustee becomes functus officio and his named successor is to execute the power. Now in this trust deed there is no hint that Lemphere and Hayes (grantor and beneficiary) were contracting that Goss, then sheriff, alone held a donation of power to execute the trust. To the contrary, the parties industriously and of set purpose provided for a line of succession to make the security effectual and easily accomplished by avoiding complications or accidents in the way of foreclosure."

The original sheriff named as trustee was out of the county, and the sheriff in office at the time of the default executed the trust and made the sale, and it was held the sale was good. This case closes by reference to the McNutt Case, and was sent to the court en banc because of a difference from that case, and the opinion was there adopted. Since that time this court in several cases has held that the "then sheriff" mentioned in deeds of trust of that form is the sheriff who happens to be such when the foreclosure is desired. Betzler v. James, 227 Mo. 375, 26 S. W. 1007; West v. Spencer, 238 Mo. loc. cit. 69, 141 S. W. 586; Miller v. Bank, 235 Mo. loc. cit. 529, 530, 139 S. W. 192. Each of these cases distinguishes the McNutt Case, and calls attention to the peculiar language used in it. In none of these cases was it stated or...