Trotter v. Carter

• Decision Date: 04 December 1944
• Docket Number: 39063
• Parties: L. E. Trotter, Appellant, v. Larcena Carter and J. C. Green
• Court: Missouri Supreme Court

183 S.W.2d 898

353 Mo. 708

L. E. Trotter, Appellant, v. Larcena Carter and J. C. Green

No. 39063

Supreme Court of Missouri

December 4, 1944

Appeal from Ripley Circuit Court; Hon. Randolph Weber Judge.

Affirmed.

Howard R. Maness and Macye Maness for appellant.

(1) Defendant's failure to file answer to plaintiff's amended petition admits plaintiff's cause of action. Sec 1239, R.S. 1939; Electrolytic Chlorine Co. v. Wallace & Tierman Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A.L.R. 930. (2) The right to foreclose a deed of trust by advertisement is purely statutory, and must be complied with strictly. Foreclosure of deed of trust without request of legal holder of notes is void. "Holder" means the payee or indorsee of a bill or note who is in possession of it or the bearer thereof. Secs. 3209, 3450, R.S. 1939; Magee v Burch, 108 Mo. 336, 18 S.W. 1078; Morrison v. Herrington, 120 Mo. 665, 25 S.W. 568. (3) A sale made by a trustee at the request of one not in possession of the note, or where the note is lost, is void, and passes no title whatever; and even though it were voidable only, where the beneficiary buys the land in at a foreclosure sale, then the sale can be set aside, otherwise, any one could start a foreclosure of any deed of trust. To get around this proposition, in case of lost note, we have a statute which gives the owner the right to bring suit. Sec. 1114, R.S. 1939; Biffle v. Pullam, 125 Mo. 108, 28 S.W. 323; Barrows v. Million, 43 Mo.App. 79; Pharis v. Surrett, 54 Mo.App. 9; Magee v. Burch, supra; Edwards v. McKee, 1 Mo. 123. (4) One cannot recover on a lost note without first executing an indemnifying bond. The filing of a bond is a condition precedent to recovery, which must be performed before entry of judgment. Secs. 1114, 1115, R.S. 1939; Hogan v. Kaiser, 113 Mo.App. 711, 88 S.W. 1128; Barrows v. Million, supra. (5) The maker of a note and deed of trust has a right to rely upon the statements of the trustee the same as does the beneficiary, because the trustee is the agent of both parties. American Wine Co. v. Scholer, 85 Mo. 496; Holdsworth v. Shannon, 113 Mo. 508, 21 S.W. 85; State ex rel. Central Type Foundry v. Moore, 72 Mo. 285; Hanson v. Neal, 215 Mo. 256, 114 S.W. 1073.

Chas. B. Butler for respondents.

(1) When an amended petition is filed, unless the cause of action is changed thereby, it is not necessary to refile the answer. Bremen Bank v. Umsrath, 55 Mo.App. 43; Scheerer v. Waltner, 225 Mo.App. l.c. 841; James v. K.C., P. & G.R. Co., 69 Mo.App. l.c. 436; Cox v. Capron, 10 Mo. l.c. 697. (2) The statute was strictly complied with. Secs. 3463, 3464, R.S. 1939. (3) The judgment of trial court in this instance is entitled to much weight and should not be disturbed. Dolan v. Talie, 263 S.W. 623. (4) While it is a general rule that mere inadequacy of price without more is insufficient, unless so great as to shock the moral sense, to set aside a sale of land under a foreclosure. Holdsworth v. Shannon, 113 Mo. l.c. 520; Donald v. Desota Sav. & Bldg. Assn., 175 Mo. 250. (5) The evidence is that the note secured by the deed of trust which was foreclosed was lost; that it was not in the possession of any one having a right thereto; the deed of trust shows that it was not negotiable. The trustee in a deed of trust is in no sense a custodian of the security in which he is named as trustee, and there is no occasion for his having it in his possession or sight is well established. Holdsworth v. Shannon, 263 S.W. 263. (6) Where the purchaser at a sale under a deed of trust is guilty of any trick, fraud or devise to get the property at less than its value the burden of showing the fraud, trick or devise is upon the party attacking the sale, and to justify the setting aside of the sale the evidence must be clear and convincing. Keiser v. Gammon, 95 Mo. 217.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to set aside a sheriff's deed to defendant Larcena Carter made upon the foreclosure of a deed of trust where the sheriff was acting as trustee. The trial court found for defendants and plaintiff appealed.

These contentions are made: (1) That plaintiff's demurrer to Mrs. Carter's answer should have been sustained; (2) that plaintiff's motion for judgment on the pleadings should have been sustained; (3) that the note secured by the deed of trust being lost and plaintiff not indemnified, foreclosure could be by suit only; (4) that deed should be set aside because a fraud, in effect, was practiced on plaintiff by the sheriff which caused him (plaintiff) to abandon proceedings to enjoin the sale; (5) that the land was sold at such an inadequate price that the deed should be set aside for that reason; and (6) that the foreclosure sale was void because not made at the request of the legal holder of the note.

Plaintiff is the son of defendant Larcena Carter; defendant Green is the sheriff; he did not answer. Hereinafter, unless it otherwise appears, the term defendant has reference to Mrs. Carter. The land involved is 119 acres in Ripley County. It was homesteaded by defendant's grandfather and inherited by her from her father. She lived on the place "practically all" her life. At the time of the trial (December 18, 1943) defendant was 73; she has 2 sons, 6 daughters, all married. The foreclosure sale was on May 21, 1943, and the land was sold to defendant on a bid of $ 600.

September 17, 1930, defendant conveyed the land by quitclaim deed to plaintiff. The deed recites a consideration of "other valuable consideration and one dollar." At the time of the execution of the deed, plaintiff gave to defendant his note for $ 1200 due in 5 years, and to secure the note he gave the deed of trust foreclosed. No payment was ever made on the note. Plaintiff, in effect, claims that defendant gave him the land. The deed of trust was not recorded until February 7, 1942.

At the time of the foreclosure plaintiff was working in St. Louis. He saw notice of the foreclosure published in a Doniphan (county seat) paper; went to Doniphan on Sunday before the sale on Friday, and employed counsel to bring proceedings to enjoin the sale. While at Doniphan compromise was talked; plaintiff got Ed Brooks, a son in law of defendant, to see her. Brooks reported that defendant would pay plaintiff $ 150.00 if he would deed the land back to her. Plaintiff decided to do that "if she (defendant) produced the note" and a deed was drawn up. Then plaintiff got Herman Broyles to see defendant about the $ 1200 note, as we infer. Broyles reported that defendant "didn't have the note" (defendant testified the note was lost). Plaintiff was advised, he said, that the sheriff couldn't sell "unless she (defendant) produced the note", and asked the sheriff about that. According to plaintiff the following conversation between the sheriff and plaintiff occurred as a result of the inquiry:

"'Well, I (the sheriff) could (sell without the note), but I wouldn't know who to turn the money over to', and I (plaintiff) said, 'I agreed to deed place back to her if she produced the note', and he said, 'I won't have nothing to do with it', and I said, 'I would see Mr. Delco and deed the property back if she produced the note', and he said, 'Fine, I won't have anything to do with it.' That was on Wednesday night and Friday they sold it and I did not know about it until a week. . . . Q. Just tell the court what the sheriff said about the sale of the land? A. He said he 'could sell the land, but he wouldn't know who to pay the money to.' Q. Did he tell you to go back to St. Louis? A. He did, and I said, 'Well, I can go back to St. Louis?', and he said, 'Yes.'"

Plaintiff's wife testified: "Q. Just tell the court whether or not you were present when the sheriff had a conversation with your husband. A. Yes, sir, I was, on the day before the sale was to come off on the 21st; we talked and my husband told the sheriff that he had come out to settle with my (his) mother, but she didn't have the note, and the sheriff said, 'If she hasn't the note, I wouldn't know who to give the money to', and my husband said, 'Then you won't conduct the sale?', and he said, 'No', and my husband said, 'I will go back to St. Louis', and the sheriff said, 'All right, you do that; I won't conduct the sale.' . . . After the sale I got word he went ahead with it and then I talked to you (Mr. Maness) and then to the sheriff and I said, 'I thought you wouldn't go ahead with it', and he said, 'I did', and Mr. Butler (defendant's counsel) said, 'It was on record', and the sheriff told me that she (defendant) made affidavit in regard to it (loss of the note) and that it wouldn't come up against my husband." And then on cross-examination, this: "Q. The sheriff told you that day that Mrs. Carter made an affidavit that the note was destroyed? A. No, that she made an affidavit that the note was lost, but that it wouldn't ever come up against him."

Ed Brooks testified: "Elvis Trotter (plaintiff) and his wife and I were talking on the sidewalk and Mr. Green (the sheriff) drove up and stopped there and they discovered -- Elvis Trotter had discovered that this note could not be produced and someone had told him 'that they didn't think the sheriff could sell this place without the note', and he asked the sheriff 'if he could sell the place without the note', and the sheriff said, 'No, I can't sell this place without the note.' Q. Then what did Mr. Trotter say? A. I didn't stay very long after that. Q. Did Mr. Green say anything about (plaintiff) going back to St. Louis? A. Not in my presence. Q. Did he say that he wouldn't sell the place? A. He said he couldn't sell the place because he wouldn't know who to pay the money to."

After the conversation with the sheriff plaintiff told his...