Wakefield v. Dinger

• Decision Date: 30 October 1939
• Citation: 135 S.W.2d 17,234 Mo.App. 407
• Parties: MALLORY WAKEFIELD AND LUCILLE B. WAKEFIELD, APPELLANTS, v. WILLIE W. DINGER, BESSIE I. DINGER AND JOHN M. CARSON AND HIS WIFE, RESPONDENTS
• Court: Missouri Court of Appeals

135 S.W.2d 17

234 Mo.App. 407

MALLORY WAKEFIELD AND LUCILLE B. WAKEFIELD, APPELLANTS, v. WILLIE W. DINGER, BESSIE I. DINGER AND JOHN M. CARSON AND HIS WIFE, RESPONDENTS

Court of Appeals of Missouri, Springfield

October 30, 1939

Appeal from the Circuit Court of Newton County.--Hon. Emory E Smith, Judge.

Judgment affirmed.

Henry Warten for appellants.

A. H Garner for respondents.

TATLOW P. J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW, P. J.

I. This case was originally appealed to the Supreme Court and by that court transferred to this court. In the opinion transferring the case it is said:

"This is a straight action in ejectment. The petition seeks possession, damages and rents. The answer contains a general denial, and a plea of ownership but asks no adjudication of title for relief. The reply puts in issue defendant's ownership and seeks the relief prayed in the petition. The judgment does not adjudge title in plaintiffs or defendants. [Consult Hecker v. Bleish, 319 Mo. 149, 175 (IX), 3 S. W.2d 1008, 1019 (IX).] The only ground for our appellate jurisdiction is that title to real estate is involved within the meaning of Art. 6, Sec. 12, of our Constitution. Under our rulings, title to real estate is only incidentally or collaterally involved and appellate jurisdiction is in the Court of Appeals (citing cases). "

This establishes the jurisdiction in this court, notwithstanding any opinion we might have entertained with reference thereto had the appeal been granted to this court in the first instance.

The statement in the opinion of the Supreme Court transferring the case to this court, gives a general outline of the case and of the pleadings.

The petition was filed on the 5th day of June, 1936. It alleges that, on the 6th day of January, 1933, the plaintiffs were entitled to the possession of the premises situated in Newton County, Missouri, described in the petition, and, being so entitled to the possession thereof, defendants afterwards, to-wit, on the 7th day of January, 1933, entered into such premises, and unlawfully withheld from plaintiffs the possession thereof, to their damage in the sum of One Thousand Five Hundred Dollars ($ 1500), and that the monthly value of the rents and profits of the premises was Twenty-five Dollars ($ 25).

The answer and reply is sufficiently outlined supra.

Trial of the case was had on the 19th day of the regular October Term, 1936, of the Circuit Court in Newton County, before the court without a jury, on which date the court took the cause under advisement until the following February Term of said court.

At the February Term, 1937, the court rendered its judgment but did not make a finding of facts, which it was requested to do by the appellants. After the adjournment of the February Term of court, and in vacation of the court, the judge made a finding of facts, which is contained in the record.

The evidence consists largely of record evidence and undisputed facts.

The plaintiffs' evidence consists of the following:

A general warranty deed from Willie W. Dinger and Bessie I. Dinger, his wife, to Mallory Wakefield and Lucille B. Wakefield, his wife, conveying to the Wakefields the property in controversy, by the entirety, "subject to a deed of trust for $ 1000, and all building restrictions covering said property". The date of this deed and the consideration therefor are not shown except by the oral testimony in the case.

Mrs. Wakefield, on cross-examination, testified:

"In July of 1929 my husband and I purchased the property in question of Mr. and Mrs. Dinger. They executed a warranty deed to us of the property subject to a one thousand dollar lien; and at the same time, and as a part of the purchase price, we gave Mr. Dinger a deed of trust back, which was a second deed of trust, securing the note in the sum of nine hundred and fifty dollars, which note I have already identified. . . ."

The deed of trust is dated the 26th day of July, 1929, and is by and between Mallory Wakefield and Lucille B. Wakefield, his wife, of Jasper County, Missouri, referred to therein as the First Party, and L. A. Hamrick of Jasper County, Missouri, referred to therein as the Second Party, and W. W. Dinger of Cherokee County, Kansas, referred to therein as the Third Party. It conveys the property in controversy, subject to a deed of trust of $ 1000, in favor of the First State Bank of Joplin, Missouri, and then proceeds:

"TO HAVE AND TO HOLD THE SAME, with the appurtenances, unto the said second party and to his successor or successors in this trust, and to his and their assigns, forever IN TRUST, HOWEVER, for the following purposes: Whereas the said Mallory Wakefield and Lucille B. Wakefield, his wife, this day made, executed and delivered to the said third party one Promissory Note of even date herewith, thereby promising to pay to the order of the said third party for value received, the sum of Nine Hundred and Fifty dollars Dollars, with interest at the rate of 8% due in monthly installments of $ 25 each."

It then contains recitals with reference to the payment of other liens, the procuring of insurance, the payment of taxes, etc.

It then provides:

"Now, if said note and the interest thereon be paid when due, and said agreements be faithfully performed as aforesaid, then these presents shall be void, and the property hereinbefore conveyed shall be released at the cost of the said first party; but if default be made in the payment of said note or any part thereof, or any interest thereon, when due, or in the faithful performance of any or either of said agreements as aforesaid, then the whole of said note shall become due and payable, . . . ."

The deed of trust contains the usual and customary power of sale after default and publication of notice of sale.

The sale was to be made to the highest bidder at the west front door of the Newton County Circuit Court House in the City of Neosho, Missouri.

The deed of trust was not filed for record until June 20, 1936, at eight o'clock and twenty minutes A. M., which was after the filing of the suit, on June 5th, 1936.

The note was offered in evidence and is as follows:

"$ 950.00 July 25, 1929

"In monthly installments of $ 25.00 each after date for value received we promise to pay to

"W. W. Dinger or order

"Nine Hundred and Fifty Dollars

"At

"To bear interest at the rate of 8 per cent per annum from July 25, 1929. And further hereby agree that if this Note is not paid when due to pay all costs necessary for collection including ten per cent attorney's fees.

"Mallory Wakefield

"Lucille B. Wakefield

(Endorsed on Back)

"Jan. 7, 1933 Credit of Sale under Deed of Trust $ 100.00

"Jan. 26--1933 the sum of this Note and interest on same hereby waived to $ 300.00 leaving balance due of $ 300.00. W. W. Dinger."

The notice of sale is as follows:

"NOTICE OF TRUSTEE'S SALE

"Default having been made for more than six consecutive months in the payment of dues, interest and fines provided for by a note described in deed of trust executed by Mallory Wakefield and Lucille D. Wakefield, his wife, dated July 25, 1929, therefore, I, the undersigned trustee, at the request of the legal holder and owner of said note, will on SATURDAY, JANUARY 7, 1933, between the hours of 9 A. M. and 5 P. M., at the east front door of the court house in Neosho, Newton County, Missouri, sell at public vendue for cash in hand the real estate in said deed of trust described as follows, to-wit:

"(Describing the real estate in controversy), for the purpose of satisfying said debt and costs.

"L. A. HAMRICK, Trustee."

The affidavit of the publisher was introduced, showing that the notice of sale was published four times in THE NEOSHO TIMES, the first publication being on December 15th, 1932, and the fourth publication being on January 5th, 1933.

The foregoing documentary evidence was offered by the plaintiffs below, and the appellants here.

Observe that the deed of trust does not contain any provision requiring a default "for more than six consecutive months in the payment of dues, interest and fines provided for by a note described in the deed of trust executed by Mallory Wakefield and Lucille D. Wakefield, his wife, dated July 25, 1929", etc.

The recitals in the notice are in the conventional form to foreclose a Building and Loan deed of trust, but the deed of trust, itself, is in the conventional form providing for the securing of an ordinary promissory note.

The undisputed testimony in the case is as follows:

Lucille B. Wakefield, one of the plaintiffs, testified:

"I am one and the same as the Lucille B. Wakefield named in the warranty deed which was executed to me and my husband by W. W. Dinger and his wife, and which deed has already been offered in evidence. Mallory Wakefield named in that same deed is one and the same as the plaintiff herein. Upon delivery of this warranty deed to me and my husband, we entered into possession of the premises (described in the petition). . . .

". . . We lived there until November 15th or 16th. We left the premises vacant, took our furniture out of the house, intending to stay away about three months; and we stayed away until March of 1933. When we came back we did not move back into the house as Mr. Dinger had foreclosed the mortgage in the meantime."

Mr. W. W. Dinger, one of the defendants below, and respondent here, testified:

"Q. Do you know when they left the premises? A. Well, I don't know the exact date. I don't remember, because I went out there and it was vacant, and the neighbors told me it had been vacant for some time."

He further testified:

"The property was vacant when I went out there in the fall of 1932."

Observe that the...