Wolff v. Ward

• Decision Date: 17 March 1891
• Parties: WOLFF et al. v. WARD et al.
• Court: Missouri Supreme Court

16 S.W. 161

104 Mo. 127

WOLFF et al. v. WARD et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1891.

EQUITY — FORECLOSURE — PARTIES — REVIEW ON APPEAL.

1. Courts of equity have jurisdiction, in proper cases, to afford relief where there has been an attempted foreclosure of a mortgage which is invalid because of a non-compliance with the statutory requirements, and a bill in equity may be brought by the purchaser for relief.

2. A bill in equity averred that plaintiffs were respectively the beneficiary and trustee of a deed of trust given to secure certain notes, and the purchaser at a sale thereunder, and that defendants were the owners of the property in question subject to the lien thereof; that, default having been made in the payment of the notes, the trustee advertised the property under the power of sale for sale on Monday, May 22d; that on May 4th it was discovered that May 22d was Sunday, and the notice was changed to read "Monday, May 23d;" that in that form it was published for 19 days only, though the power of sale required 20 days' notice; that the other plaintiff, believing such notice sufficient, purchased the property at such sale, and has since paid taxes, repairs, etc.; that he had since executed another deed of trust thereon with the same trustee, and to secure a note due to the same beneficiary; that defendants had refused to surrender the property, and had continually asserted that the sale was void; that plaintiffs, though at the time they believed the sale to be valid, had since been advised by counsel that it was insufficient, — and prayed for a receiver to take rents, and that the deed of trust be foreclosed, the property again sold, and the respective claims of the plaintiffs paid from the proceeds. Held not demurrable for want of equity.

3. The purchaser at the invalid sale, who had expended money for repairs, insurance, and taxes, and had given another deed of trust on the property; the beneficiary, who had loaned money on the faith thereof; and the trustee under both deeds of trust, in whom the legal title vested, — are proper parties plaintiff to a bill for a foreclosure of the original deed of trust.

4. Applications for change of venue are not a part of the record proper, and rulings thereon will not be considered on appeal unless exceptions are saved, and the matter brought to the attention of the court by motion for new trial.

Appeal from St. Louis circuit court.

M. & J. R. Kinealy, for appellants. Ellerbe & Hicks, for respondents.

THOMAS, J.

On January 20, 1888, plaintiffs filed their petition in this cause, on which summons was issued and served on Catherine Ward and Edward Ward, defendants, on the same day, (Friday.) The case was assigned to court-room No. 1. The original petition is not sent up in the record, and hence we are not able to determine what it contained, but we have a right to presume, and the argument of appellants' counsel in this case virtually concedes, that it set forth substantially the same cause of action against the defendants as is set forth in the amended petition. On the 23d day of January defendant Catherine Ward filed her application for change of venue from the city of St. Louis, on the ground that the opposite party had an undue influence over the minds of the inhabitants of that city, to the extent she could not have a fair trial therein. This application was by the court overruled, presumably on the ground that this was a suit in equity, and, as defendants were not entitled to a trial by jury, it made no difference about the prejudice of the people. Thereupon plaintiffs applied for the appointment of a receiver, and at the instance of defendant Catherine Ward this was continued to January 31st, and on that day she filed an application for a change of venue, on the ground of the undue influence of the opposite party over the mind of the judge. In this application she avers that knowledge of this undue influence came to her "about the last part of the week before last." This application was also overruled. On the same day the court made an order appointing Leslie A. Moffet receiver, to take charge of and manage the property in controversy during the litigation. On the 20th day of March plaintiffs filed an amended petition as follows:

"George P. Wolff, James B. Hughes, Marcus A. Wolff, Plaintiffs, vs. Catherine Ward, Edward T. Farish, Mary Sweeney, Defendants. The above-named plaintiffs for their amended petition state that heretofore, to-wit, on the 9th day of October, 1880, one Rosanna Manley, then being the owner of the realty hereinafter mentioned, by her certain deed of trust of said date executed by her, which deed is recorded in Book 642, on page 247 thereof, in the office of the recorder of deeds of the city of St. Louis, conveyed to plaintiff Marcus A. Wolff, as trustee for plaintiff James B. Hughes, the following described premises situated in the city of St. Louis, state of Missouri, to-wit: A lot of ground in block No. 139 of said city, and more particularly described as follows: Beginning in the west line of Sixth street, distant one hundred and forty-four feet south of the south line of Wash street; thence running west at right angles with Sixth street one hundred and twenty-seven feet six inches, to the east line of an alley fifteen feet wide; thence south along said east line of said alley twenty-one feet six inches, more or less; thence east one hundred and twenty-seven feet six inches to the west line of Sixth street; thence north along the west line of Sixth street twenty-one feet six inches to the place of beginning; with buildings and improvements thereon. That said conveyance was to said M. A. Wolff, in trust to secure to said James B. Hughes, the party of the third part therein, the payment of seven promissory notes therein described, given for money borrowed of him by said Rosanna Manley, of even date of said deed, payable to the order of James B. Hughes, and bearing interest from maturity at 10 per centum per annum, — one of said notes, the principal being for the sum of $5,000 dollars, and payable three years after date; and the others being semi-annual interest notes, each for the sum of $200 dollars, and payable, respectively, in six, twelve, eighteen, twenty-four, thirty, and thirty-six months after date. That in and by said deed said Rosanna Manley did covenant and agree with said party of the third part therein, his indorsees and assignees, among other things, to cause all taxes and assessments, general and special, then existing against said property, to be paid on demand, and all such thereafter levied or charged on it or therefor to be paid within the times required by law, and also to keep the improvements upon said premises constantly insured until said notes should be paid, in the sum of not less than $5,000, and to keep constantly assigned or pledged and delivered to the party of the second part therein, said trustee, for further securing the payment of said notes, all and every policy or policies of insurance held by or issued to her upon said improvements; and also that, if any or either of said agreements should not be performed as aforesaid, then the said third party or his indorsees might effect such insurance for such purpose and pay such taxes, and for repayment of all moneys paid in the premises and interest thereon the said conveyances should be a security in like manner and with like effect as for the payment of said notes. That it was further provided in said deed of trust, as follows: `Now, if said notes be paid when they become due and payable, respectively, and said agreements be faithfully performed, as aforesaid, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of said party of the first part; but if default be made in the payment of said notes, any or either of them, when they become due and payable, or in the faithful performance of any or either of said agreements as aforesaid, then this deed shall remain in force, and the said party of the second part, or, in case of his death, inability or refusal to act, or absence from the said city of St. Louis, when authorized to sell under these presents, and a sale be desired by the holder of said notes, any or either of them, then the sheriff of St. Louis city, Mo., for the time being, or such other person as may be thereto appointed by any court having jurisdiction of the property hereinbefore described, (who shall thereupon become his successor to the title of said property, and the same become vested in him, in trust for the purposes and objects of these presents, and with all the powers, duties, and obligations thereof,) may proceed to sell the property hereinbefore described, or any part thereof, at public vendue to the highest bidder for cash, at the eastern front door of the court-house in said city of St. Louis, first giving twenty days' public notice of the time, terms, and place of sale, by the advertisement in some English newspaper, printed and published in said city of St. Louis, and upon such sale shall execute and deliver a deed in fee-simple of the property sold to the purchaser or purchasers thereof, (all the recitals whereof shall be prima facie evidence of the facts therein set forth,) and receive the proceeds of said sale, out of which he shall pay first the cost and expenses of executing this trust, including a reasonable compensation to the trustee for his services, to be not less than twenty-five dollars in any case; and next to the payer thereof, upon the usual vouchers therefor, all moneys paid for insurance and taxes and judgments upon statutory lien claims as hereinbefore provided for, when not paid as hereinbefore agreed, and interest thereon at the rate of 10 per cent. per annum from the times of their payment; and next of such of said interest notes as are due and unpaid, and all interest earned thereon; and next, if enough therefor, said...