Wilson v. Reed

• Citation: 193 S.W. 819,270 Mo. 400
• Parties: BEULAH WILSON et al. v. J. A. REED, Appellant
• Decision Date: 16 March 1917
• Court: United States State Supreme Court of Missouri

193 S.W. 819

270 Mo. 400

BEULAH WILSON et al. v. J. A. REED, Appellant

Supreme Court of Missouri, Second Division

March 16, 1917

Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.

Affirmed.

Johnson & Sea for appellant.

(1) The note being conditioned that if the interest be not paid annually to become as principal and bear the same rate of interest until paid, thus leaving it optional with the maker whether it should be paid or be compounded by the terms of the note, no forfeiture could be taken until note was fully matured, and the trustee had no right to recover possession until such forfeiture. Koehring v. Muemminghoff, 61 Mo. 403; Frye v. Shepherd, 173 Mo.App. 200. (2) The terms of the note are not controlled by the conditions in the deed of trust, the deed of trust being a mere incident following the debt wherever it goes. Owings v McKinzie, 133 Mo. 336; Bank v. Com. Co., 93 Mo.App. 136. (3) A trustee, in a deed of trust, has no right to the possession of the premises, and having no right to possession, cannot maintain an action in ejectment. Siemers v. Schrader, 88 Mo. 20; Bailey v. Winn, 101 Mo. 656.

Rechow & Pufahl for respondent.

(1) Where the deed of trust provided that the interest should be paid annually, and if not paid it was to be compounded, and that if the maker should refuse to pay the debt, or the interest, or any part thereof, when due, then the whole should become due and payable, the agreement for compounding interest is no waiver of the right to enforce its payment when due, and the trustee might properly sell, if the interest is not paid annually. Waples v. Jones, 62 Mo. 440. Where a guardian and curator loans the money of his wards, the interest is payable whether so expressed in the note or not. R. S. 1909, sec. 444; Payne v. King, 38 Mo. 502. The defendant was bound to know that this was the law and must be governed thereby; and the fact that he did not insert that clause in the note cannot benefit him. He certainly of all men, is not in a position to take advantage of his own wrong or neglect. Sturgeon v. Hampton, 88 Mo. 213; Montgomery County v. Auchley, 103 Mo. 507. Where the deed of trust provides that the debtor shall pay the taxes on the property, or shall keep the property insured, or shall make certain repairs and in case of default in that regard the debt, principal and interest shall mature and the property be sold to pay the same, a sale for non-compliance with any of these conditions could be made. Phillips v. Bailey, 82 Mo. 639. (2) After condition broken a mortgagee in a mortgage is entitled to possession and may maintain ejectment for the purpose of paying the debt. The legal title in a deed of trust is in the trustee and after condition broken, he may maintain ejectment. Johnson v. Houston, 47 Mo. 227; Siemers v. Schrader, 88 Mo. 23; Bailey v. Winn, 101 Mo. 656; Sutton v. Mason, 38 Mo. 120.

WHITE, C. Roy, C., concurs.

OPINION

WHITE, C.

The appeal is from a judgment in favor of the plaintiffs in an ejectment suit.

The abstract of the record proper filed in this court fails to show that a motion for new trial was filed or was overruled, and fails to show that a bill of exceptions was filed. Appellant prints what purports to be a bill of exceptions in which the filing of the motion and the bill of exceptions and the ruling on the motion are recited, but that is insufficient to permit a review of alleged errors except such as may appear in the record proper. [Case v. Carland, 264 Mo. 463, 175 S.W. 200; Hogan v. Hinchey, 195 Mo. 527, 94 S.W. 522.]

It is claimed, however, by the appellant that sufficient errors appear on the face of the judgment to warrant a reversal. Two objections to the judgment are urged. First, that it is not responsive to the pleadings; and, second, that it is contradicted and vitiated by the recitals in the judgment itself.

The suit was filed March 10, 1912. The judgment recites that the plaintiffs Beulah A. Wilson, Charles R. Wilson, Jessie G. Wilson and Mildred E. Wilson are all minors, and that the plaintiff D. W. Covington is the duly appointed, qualified and acting guardian and curator of their persons and estate. That the defendant, J. A. Reed, on August 24, 1910, executed and delivered to the then guardian of these minors his promissory note for nine hundred dollars, due five years after date, "with interest from date at the rate of six per cent per annum and if the interest be not paid annually to become as principal and bear the same rate of interest until paid." That to secure the payment of said note the said J. A. Reed at the time executed a deed of trust conveying the land sued for to F. W. Adams as trustee; that no part of said note or interest has been paid and by the terms of said deed of trust said interest should be paid annually. The judgment then proceeds as follows:

"The court further finds that there has been a forfeiture, and that the conditions of the said deed of trust have been broken, and that the plaintiff, F. W. Adams, as trustee, is entitled to the possession of said premises hereinbefore described, for the purpose of applying the proceeds and the rents and profits therefrom on the debt and note held by the said D. W. Covington, as guardian and curator of the said Beulah A. Wilson, Charles R. Wilson, Jessie G. Wilson and Mildred E. Wilson, minors.

"The court further finds that possession was demanded from the defendant, and that he has been unlawfully holding possession of said premises since the 28th day of February, 1913, and that the damages sustained by reason of his withholding such possession amounts to thirty dollars.

"The court further finds that the value of the monthly rents and profits from said premises is eight dollars per month.

"It is therefore ordered, adjudged and decreed by the court that the said F. W. Adams, trustee, have and recover of and from the defendant, J. A. Reed, the possession of the premises herein described for the purpose of applying the proceeds, rents and profits on the debt and note executed by the defendant, J. A. Reed; and that when said debt has been fully extinguished, then he turn over possession of said premises to the said J. A. Reed."

It was further ordered that the said plaintiff have and recover of and from the said defendant, J. A. Reed, thirty dollars damages and the sum of eight dollars per month until possession should be delivered to the said plaintiff, and all costs, for all of which execution and writ of restitution might issue.

The first objection is directed at the paragraph finding the plaintiff Adams entitled to possession "for the purpose of applying the rents and profits therefrom on the debt and note," etc., and ordering that plaintiff have and recover possession for such purposes, "and that when said debt has been fully extinguished, he turn over possession of said premises to said J. A. Reed."

Appellant claims it is a decree in equity and therefore not responsive to the petition in ejectment, a straight action at law. The judgment, without that finding, is full and complete as a judgment in ejectment; it recites the issues found for plaintiff, the amount of damages, rents and profits, and awards possession to the plaintiff and judgment for the amount of such damages, rents and profits. The recitals which attempt to state the reason and the purpose for...