Truchon v. Mackey

• Decision Date: 04 February 1913
• Citation: 153 S.W. 502,171 Mo.App. 42
• Parties: BENJAMIN A. TRUCHON, Defendant in Error, v. GEORGE C. MACKEY, Trustee, Plaintiff in Error
• Court: Missouri Court of Appeals

153 S.W. 502

171 Mo.App. 42

BENJAMIN A. TRUCHON, Defendant in Error, v. GEORGE C. MACKEY, Trustee, Plaintiff in Error

Court of Appeals of Missouri, St. Louis

February 4, 1913

Error to St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

REVERSED AND REMANDED.

Watts Gentry & Lee, for plaintiff in error.

(1) The petition fails to state a cause of action. (2) The deed of trust as charged in the petition contains an express covenant and agreement that the mortgagor shall pay all taxes lawfully assessed against the mortgaged premises. Rumsey v Railroad, 154 Mo. 215; Cannock v. Jones, 3 Exch. 233; Montford v. Cadogan, 19 Ves. Jr. 635; Bower v. Hodges, 13 C. B. 765. (3) A stipulation in a deed of trust that the mortgagor shall pay all taxes assessed against the mortgaged property, and that in case of default thereof the mortgagee may at his option declare the entire debt due and instruct the trustee under an express power of sale to make a public sale of the premises to satisfy the taxes and debt, is valid and enforcible. Jones Mortgages (6 Ed.), secs. 77 and 1175; 27 Cyc. 1254, 1451; Rumsey v. Railroad, 154 Mo. 215; Horrigan v Wellmuth, 77 Mo. 542; Gooch v. Botts, 110 Mo. 419; Phillips v. Bailey, 82 Mo. 639; Phefinghauser v. Schearer, 65 Mo.App. 348; Meier v. Meier, 105 Mo. 411; Dalton v. Eaves, 92 Mo.App. 72; Brown v. Brown, 124 Mo. 79; Burnes Est. v. Ayr Lawn Co., 82 Mo.App. 66; Stanclift v. Norton, 11 Kan. 218; Ellwood v. Walcott, 22 Kan. 526; O'Connor v. Shipman, 45 How. Pr. 126; Parker v. Olliver, 106 Ala. 549; Lawler v. French, 104 Va. 140; Brickell v. Batchilder, 62 Cal. 623; Gustav Assn. v. Kratz, 55 Maryland 394; Condon v. Maynard, 71 Md. 601.

H. A. Yonge and John W. Benstein filed argument for defendant in error.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit in equity for injunctive relief. The finding and judgment were for plaintiff, who is defendant in error here, and defendant in the suit, who is plaintiff in error, prosecutes a writ of error here.

The important question for consideration relates to the right of a trustee to exercise the power of sale vested in him by a deed of trust, on demand of the cestui que trust, for a breach of the mortgagor's covenant to pay taxes accrued on the mortgaged premises. The circuit court denied the right and decreed a perpetual injunction against the exercise of the power of sale for the breach of the covenant mentioned.

By his deed of trust, in the usual form, of date June 1, 1907, and duly recorded, plaintiff in the suit (defendant in error here) conveyed to Charles J. Burde, of the city of St. Louis, Missouri, as trustee, a parcel of real estate, therein described, to secure the payment of a cash loan in the amount of $ 2200 and interest thereon, evidenced by certain promissory notes, therein described, payable to Conrad Kraft, Jr. Afterwards defendant in the present suit, and plaintiff in error here, was substituted instead of Burde as trustee in the deed of trust, and thereby clothed with all of the powers conferred in that instrument. The principal note described in the deed of trust in the amount of $ 2200 is, by its terms, payable three years after date, and the remaining six notes were for semiannual installments of interest on the principal sum, in the amount of $ 66 each, and payable, respectively, six, twelve, eighteen, twenty-four and thirty-six months after date.

It is stipulated in the deed of trust that "when any one of said notes, whether of interest or principal, became due and payable and should remain unpaid, then all of such notes should become due and payable, whether due on their face or not, to secure the payment of which said notes the party of the first part has executed this deed of trust." The deed of trust stipulates that the plaintiff mortgagor "has also agreed with said third party (the holder of the notes), his indorsees and assigns, to cause all taxes and assessments, general and special, to be paid whenever imposed upon said property, and within the time required by law, and also to keep the improvements upon said premises constantly and satisfactorily insured, until said notes are all paid, against fire, lightning and gasoline, in the sum of $ 2500, and against windstorms, tornadoes and cyclones, in the sum of $ 1500, and the policy or policies therefor to keep constantly assigned unto the said party of the second part, for further securing the payment of said note, and the same apply towards the payment of said notes, unless otherwise paid, when they become due as aforesaid. And the said party of the first part hereby guarantees to the said party of the third part, that the said property herein described is free and clear of mechanics' liens; and said party of the first part further agrees that in case any liens should hereafter be filed against said property, after the execution of this trust, then, and in that case, said liens so filed shall have the same force and effect as if any one of said notes, hereinbefore described, shall have become due and payable, and all the covenants and agreements herein provided shall be in full force and effect; and carried out as if said notes were actually due and payable. And in the event of the said party of the third part, or his assigns or legal representatives, or the party of the second part, or his successors in trust, shall expend any money to protect the title or possession of said premises, or for such insurance as aforesaid, then all such money so expended shall be a new and additional principal sum of money secured by this instrument and shall be payable on demand, and may be collected with interest thereon at the rate of eight per centum per annum, from the time of so expending the same. Now, therefore, if the said party of the first part or his legal representatives or assigns, shall well and truly pay, or cause to be paid, unto the holders thereof, respectively, all and singular the said promissory notes above mentioned at maturity thereof, respectively, according to the tenor of the same, and shall well and truly keep and perform all and singular the several covenants and agreements hereinbefore set forth, then this trust shall cease and be void and the property hereinbefore conveyed shall be released at the cost of the said party of the first part; but if either one of said notes or any part thereof, be not so paid at maturity, according to the tenor of the same, or if default be made in the due fulfillment of said covenants and agreements, or either of them, then this conveyance shall remain in force, and said party of the second part, or, in case of his death or absence from the city or any other disability, or refusal to act, his successor in this trust may proceed to sell the property hereinbefore conveyed or any part thereof, at public vendue or outcry, etc., etc." (Italics are our own.)

There was no default in the payment of any of the notes described in...