Wilson v. Schoenlaub

• Decision Date: 18 November 1889
• Citation: 12 S.W. 361,99 Mo. 96
• Parties: Wilson et al., Appellants, v. Schoenlaub
• Court: Missouri Supreme Court

12 S.W. 361

99 Mo. 96

Wilson et al., Appellants, v. Schoenlaub

Supreme Court of Missouri

November 18, 1889

Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.

Affirmed.

Vinton Pike and Jas. F. Pitt for appellants.

The trustee's deed from McLean to L. V. Fleming conveyed no title, for three reasons: (1) It failed to recite any fact which would authorize it to be made. (2) At the building company's sale, R. B. Fleming bought his own paper, or in other words, discharged his obligations, secured by the deed of trust, by paying $ 375, thus cancelling the deed under which the trustee's sale was made. (3) Because the debt which R. B. Fleming owed to L. V. Fleming, on account of the building company transaction, was paid by the execution of a deed to lot 1, in block 26, before the foreclosure sale. And for these reasons the court erred in refusing the fifth sixth, seventh and eighth instructions asked by plaintiffs.

B. R Vineyard for respondent.

(1) At the time of the winding up of the business of the building company and the sale of its assets, Lewis Fleming bought the notes and paid for them. It made no difference that Robert Fleming attended the sale with L. V. Fleming, and bid off the notes for the latter, who paid for them, and to whom they were assigned. (2) The agreement of all the stockholders of the building company, including Robert Fleming, for the winding up of its business and the sale of its assets, authorized the sale of these notes to Lewis V. Fleming, who paid the money therefor and received assignment thereof.

Black J. Ray, C. J., absent.

OPINION

Black, J.

-- Robert Fleming is the common source of title in this action of ejectment, brought to recover lots 10 and 11, in block 47, St. Joseph Extension. The plaintiffs claim through an execution sale, and the defendant claims through a prior deed of trust. The case turns upon the questions made in respect of a trustee's sale made under that deed of trust.

The deed of trust bears date November 28, 1874, and by it Robert Fleming conveyed the lots before mentioned, and also lots 1 and 2, in block 53, of the same extension, to McLean, in trust, to secure a note to the St. Joseph building association. The note is sufficiently described, and by it Fleming promised to pay to the association, or order, five hundred dollars, with interest at ten per cent.; "said interest payable monthly, on the first Monday of each month, and the principal payable at one dollar on Monday of each week, according to the rules and regulations of said building company." The deed recites that Fleming had redeemed one share of stock in the fourth series, for which he executed the note above set forth. It goes on to provide that if Fleming shall pay off the share of stock so redeemed, the interest due thereon, and all other indebtedness due the company, according to its constitution and by-laws, then the deed shall be void; but if the debt and every part thereof shall not be paid, as above set forth, then the trustee may sell, etc. The four lots were sold by the trustee on May 14, 1880, and Lewis Fleming became the purchaser. For authority to sell, the trustee's deed recites: "Whereas default was made in the payment of said promissory note, secured by said deed of trust, by reason whereof," etc. Lewis Fleming conveyed the two lots in question to defendant by a warranty deed, dated October 20, 1882.

1. Objection was made to the trustee's deed on the ground that it did not show any default authorizing a sale. This objection, as we understand it, is based on the theory that by reference to the constitution and by-laws, it will be seen the note was never to be paid; that the deed of trust secured nothing more than the "payment of dues," and no reference is made to a default in that respect. Looking to the constitution and by-laws of the association, we find the stock was divided into four series of five hundred shares in each series, each share to be paid for by a weekly payment of one dollar. When the funds on hand amount to five hundred dollars, that amount is to be awarded to some share, the holder agreeing to pay interest monthly on the amount advanced, and the share upon which the loan, as it is called, is made, is called a "redeemed" share; but the holder of it continues to pay one dollar per week, and the monthly interest, until all of the shares in...