Webb v. Salisbury

• Citation: 39 S.W.2d 1045,327 Mo. 1123
• Decision Date: 05 June 1931
• Docket Number: 29355
• Parties: Thomas W. Webb and Barbara E. Webb v. Spencer Salisbury, Mary Salisbury and Rose M. Clinton, Appellants
• Court: United States State Supreme Court of Missouri

39 S.W.2d 1045

327 Mo. 1123

Thomas W. Webb and Barbara E. Webb v. Spencer Salisbury, Mary Salisbury and Rose M. Clinton, Appellants

No. 29355

Supreme Court of Missouri

June 5, 1931

Rehearing Overruled June 5, 1931.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Reversed and remanded (with directions).

Clay C Rogers and Burrus & Burrus for appellant.

(1) The court erred in entering the decree, because the petition upon which the case was tried does not state facts sufficient to justify the relief prayed for or granted by the court. (a) Failure to make the trustee a party, he being a necessary party to an adjudication of this action. Booth v Proctor, 219 S.W. 72; Markwell v. Markwell, 157 Mo. 326. (b) Failure to allege tender of the amounts admitted to be due. Majors v. Putney, 293 S.W. 81; Betzler v. James, 227 Mo. 375; Long v. Abstract & Loan Co., 252 Mo. 158; Cavally v. Crutcher, 9 S.W.2d 848. (2) Under all the evidence the plaintiff failed to prove any facts which would enable a court of equity to render a decree as entered. Plaintiffs' petition sets up as a ground for relief the following: (a) Denial of the execution of notes and alleges a material alteration. No such evidence was adduced. Plaintiffs both admitted they signed two notes and admitted the genuineness of their signatures. (b) Failure of consideration of notes as secured by mortgage. There was no failure for the reason the evidence shows that Clinton paid to the Land Bank, for the plaintiffs, $ 2500. Webb admitted that the $ 500 note was a commission note, which is a valid consideration. (c) That the trustee sold the property and announced that there was only one deed of trust prior to the one under which he sold, when in fact plaintiffs claimed, as well as the holder of the note which was secured by a deed of trust that had been placed of record subsequent to the one under which it was sold, that such note and deed of trust was, in fact, prior to the one under which the sale was made. This could not prejudice the plaintiffs as the action of the trustee would tend to cause the property to bring more than if the sale was made subject to the two deeds of trust. This is no ground for complaint, because the trustee was not made a party to the suit. Booth v. Proctor, 219 S.W. 72; Markwell v. Markwell, 157 Mo. 326. (d) Failure of property to bring an adequate price at the trustee's sale. This is no ground to set aside a trustee's sale and deed. Lipscomb v. Life Ins. Co., 138 Mo. 24; Betzler v. James, 227 Mo. 375; Phoenix Trust Co. v. Holt, 312 Mo. 563, 279 S.W. 714; 27 Cyc. 1457; East Arkansas Lumber Co. v. Rainer, 24 S.W.2d 1001. (e) Conspiracy to rob plaintiffs. This was not proven, as all evidence shows that the land was sold in compliance with a legal notice under terms of a deed of trust, and the plaintiffs have never made a tender of any money admitted by them to be due. (f) Sale was not authorized by holder of notes. Trustee would be a necessary party, as such an act would amount to a fraud on his part. Booth v. Proctor, 219 S.W. 72; Markwell v. Markwell, 157 Mo. 326. Further, the plaintiffs claim that Rose Clinton, administratrix, was the owner of the notes, and she was present at sale, so she surely must have authorized the sale. Further, she ratified the sale even though the court should find the trustee was not authorized by the administratrix to make the sale, by the acceptance of the proceeds under the sale agreement of the notes to Salisbury. Plumber v. Knight, 137 S.W. 1019. (g) That the $ 500 note is tainted with usury, thus rendering the sale void. This is no ground of equitable relief as there is a plain, adequate remedy at law. The statutes provide for the recovery of usury, together with attorneys fees and costs of suit. Sec. 6494, R. S. 1919. Usury is a good legal defense to a suit on a note. Sec. 6495, R. S. 1919. Mortgages upon chattels and personal property are void if tainted with usury. Sec. 6496, R. S. 1919. However, no such statute applies to real property. Equity will not aid the recovery of usury, nor prevent a sale under deed of trust that has been tainted with usury. Ferguson v. Soden, 111 Mo. 208, 214; Long v. Abstract & Loan Co., 252 Mo. 158; Major v. Putney, 293 S.W. 81; Cavally v. Crutcher, 9 S.W.2d 848. (3) The court erred in excluding the testimony of James H. Clinton, Spencer Salisbury, Thomas Clinton and Rufus Burrus, with reference to the instructions of Rose Clinton as administratrix of the estate of George W. Clinton, deceased, to Rufus Burrus, trustee, to sell the property under the terms of the deed of trust, because it constitutes a part of the res gestae. Redmond v. St. Ry. Co., 185 Mo. 1; Mathews v. Coalter, 9 Mo. 705; Merchants Bank v. Berthold, 45 Mo. 527.

Manard & Schwimmer and Walter H. Maloney for respondents.

(1) The court did not err in entering the decree for respondents for failure to make the trustee a party defendant as he was not a necessary party, but, if he were, appellants waived the point by failing to preserve it by demurrer or answer. (a) The trustee was not a necessary party, to the action for he had parted with his interest when he sold at the foreclosure sale. Kirby v. Steele, 64 S. E. (W. Va.) 919. (b) The appellants did not raise by demurrer or answer the point here that the trustee was a necessary party. Consequently they are not in a position to take advantage thereof. Collins v. Linsay, 25 S.W.2d 88; Eagan v. Woeffel, 18 S.W.2d 51; Anderson v. Hall, 188 S.W. 82; Automatic Sprinkler Co. v. Clothing Co., 267 S.W. 892; Harger v. Barrett, 5 S.W.2d 1102. (2) Respondents were not required, in any event, to allege that tender had been made prior to suit of the amount admitted to be due. McDaniel v. Sprick, 249 S.W. 619; Lunsford v. Davis, 254 S.W. 880; McMillan v. Israel, 30 S.W.2d 629. (3) The court did not err in finding the issues for the respondents and entering a decree thereon under the pleadings and evidence, as the deed of trust, the foreclosure sale thereunder and the trustee's deed were void: (a) Because the owner and legal holder of the notes secured by the deed of trust did not authorize the foreclosure thereunder. Appellant Spencer Salisbury ordered and procured the sale and was not the owner and legal holder thereof or vested with any power so to do. 41 C. J. 945, sec. 1380. (b) Because no part of the alleged purchase bid of $ 3860 claimed to have been made at the foreclosure sale was ever paid, and it was a fake bid made as a part of the conspiracy alleged by respondents. Krug v. Bremer, 292 S.W. 706. (c) Because in the absence of a pleading of a ratification of Spencer Salisbury's acts, same cannot be shown and the mere presence at the foreclosure sale of the administratrix could not imply authorization of such acts. Wade v. Hardy, 75 Mo. 394; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235. (d) Because the sale of the notes was void and the approval of the contract therefor by the probate court was of no value, and the acceptance of money thereunder did not validate the foreclosure. Sec. 116, R. S. 1919; Koelling v. Bank, 237 S.W. 179. (e) Because of the deceit and fraud practiced upon respondents by George W. Clinton in the procurement and execution of the notes and deed of trust and the advantage taken of their ignorance and confidence. Howard v. Zweigart, 197 S.W. 46; Gist v. Pyland, 25 S.W.2d 479; Pomeroy Equity Jurisprudence, sec. 842. (f) Because of the acts of conspiracy and fraud of the appellants and the trustee in the attempted foreclosure proceedings. Wagner v. Binder, 187 S.W. 1159; Hewitt v. Price, 102 S.W. 647; Krug v. Brewer, 292 S.W. 702; State v. Nasello, 30 S.W.2d 132; Lunsford v. Davis, 254 S.W. 885; Stephenson v. Kilpatrick, 65 S.W. 773. (g) Because the announcement at the sale of the Prewitt deed of trust as a prior and superior one to that being foreclosed tended to scare away all the bidders, except appellant Spencer Salisbury and Tommy Clinton and they and the trustee failed to make any explanation with respect thereto. (h) Because of the inclusion of more than the debt in the note of $ 2,500 and of the $ 500 commission note, under the deed of trust. (4) The court did not err in excluding testimony with reference to the alleged instructions of Rose M. Clinton as administratrix of the estate of George W. Clinton, deceased, to sell the property under the terms of the deed of trust. (a) Because the appellants failed to set out in their "Assignments of Errors" and "Points and Authorities" the rejected evidence and failed therein to designate where in the record it might be found. State ex rel. v. Moore, 18 S.W.2d 895; Summers v. Cordell, 187 S.W. 6; Nevins v. Gilliland, 234 S.W. 820; Christine v. Luyties, 217 S.W. 60; Seewald v. Gentry, 286 S.W. 454; Paxson v. Drayage Co., 55 Mo.App. 566; Schultz v. Moon, 33 Mo.App. 329. (b) Because it was not competent evidence, but hearsay and self-serving. McFarland v. Bishop, 222 S.W. 147. (c) Because it was not a part of the res gestae, and was not offered as part of the res gestae, so as to bring it within the exception of the hearsay rule. State ex rel. Dunklin County v. Blakemore, 205 S.W. 629; State v. Oliver, 39 La. Ann. 470. (d) Because appellant Rose Clinton's failure to attend the trial and testify, casts suspicion upon the bona fides of such claim. Sanders v. Kaster, 222 S.W. 135; Howard v. Zweigart, 197 S.W. 49. (5) The decree was not erroneous for awarding the corn crop to respondents. Sec. 2234, R. S. 1919. (6) Chancellor's finding generally will not be disturbed in equity case unless the evidence was manifestly disregarded. Aude v. Aude, 28 S.W.2d 668; Finley v. Williams, 29 S.W.2d 106; Devoto v. Devoto, 19 S.W.2d 667.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This action...