Swaby v. Boyers

• Decision Date: 04 May 1920
• Docket Number: No. 15742.,15742.
• Citation: 221 S.W. 413
• Parties: SWABY v. BOYERS
• Court: Missouri Court of Appeals

221 S.W. 413

SWABY v. BOYERS

No. 15742.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 13, 1920.

Opinion Filed May 4, 1920.

Rehearing Denied May 21, 1920.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Amelia Swaby against John A. Boyers, instituted in justice court and removed by certiorari into the circuit court, which on trial before jury resulted in judgment for plaintiff, and defendant appeals. Affirmed.

James T. Roberts, F. W. Imsiepen, George F. Osiek, and Wm. A. Kinnerk, all of St. Louis, for appellant.

O. J. Mudd, of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action under section 7657, Revised Statutes 1909, for unlawful detainer of the south 16 feet, 8 inches, of the western part of lot 6 of the subdivision of the Dalton Estate, in Block 4053-A, of the city of St. Louis. The action was instituted before a justice of the peace of that city, and removed by certiorari into the circuit court, where it was tried before the court, a jury being waived, and resulted in a finding for plaintiff that defendant was guilty of unlawful detaining from plaintiff the possession of the premises described, assessing damages in the sum of $50.00, and monthly rents and profits of the value of $5.00. On this judgment was entered for restitution of possession of the premises, etc., from which judgment defendant has duly appealed.

By his deed of date February 23, 1911, defendant conveyed to a trustee named for one Beckert, a described lot in the city of St. Louis, which included the property here involved, to secure payment of a note for $500. Among other and usual provisions of such instruments, this deed of trust contained the following:

"And the said party of the second part hereby lets said premises to said party of the first part and his assigns, until this instrument be released and satisfied or until a sale be made under the provisions of this deed of trust, upon the following terms, to-wit: the said party of the first part and every and all persons claiming or possessing such premises, or any part thereof, shall pay rent therefor during said term at one cent per month, payable upon demand, and shall and will surrender peaceable possession of said premises or any and every part thereof sold under said provisions, to the party of the second part or the purchasers thereof, under any such sale, within ten days after such sale and without notice or demand thereof, provided, however, that nothing in this deed shall be so construed as to prevent the legal holder of said notes or any of them to have or to take other legal steps or means to enforce payment of such notes without first having executed this deed of trust."

Default having been made in payment of the note, the deed of trust was duly foreclosed by sale of the property thereunder and it was purchased by and conveyed by deed of date not in evidence but apparently before June 10, 1914, on which date the trustee's deed was recorded, to one Jost, from whom, by mesne conveyances, the title to the property passed by deed of general warranty, of date July 18, 1914, to plaintiff. All these conveyances were duly recorded at or about the date of their execution.

It was in evidence that defendant was in possession of the premises at the time of the execution of the deed of trust and from then on to the date of the commencement of this...