Wolff v. Ward

• Decision Date: 17 March 1891
• Parties: Wolff et al. v. Ward et al., Appellants
• Court: Missouri Supreme Court

16 S.W. 161

104 Mo. 127

Wolff et al. v. Ward et al., Appellants

Supreme Court of Missouri, Second Division

March 17, 1891

Appeal from St. Louis City Circuit Court.

Affirmed.

M Kinealy and Jas. R. Kinealy for appellants.

(1) If the sale was void, as alleged, Hughes and G. P. Wolff, or G P. Wolff alone, became the legal owner of the mortgage. Brown v. Smith, 116 Mass. 108; Jackson v. Bowan 7 Cowen, 13; Vroom v. Ditmas, 4 Paige, 526; Robinson v. Ryan, 25 N.Y. 370. (2) There was no equitable relief necessary to put plaintiff, Geo. P. Wolff, in a position to institute a suit for a foreclosure of the deed of trust, if it was still in force, and hence the foreclosure was purely at law, and respondent was entitled to a trial by jury. Smith v. Finn, 77 Mo. 499; Nolan v. Brewster, 17 Mo.App. 497; Fithian v. Monks, 43 Mo. 502; Mason v. Barnard, 36 Mo. 384. (3) The court, therefore, erred in refusing a change of venue on the respondent's application, grounded on undue influence over the inhabitants of the city, the application being in due form. Dowling v. Allen, 88 Mo. 300. (4) The court should have granted the second application for a change of venue. Dowling v. Allen, 88 Mo. 300. (5) The petition stated no cause of action, because the sale by Wolff, trustee, has not been declared void for want of sufficient notice, or at all, and it does not appear that appellant is objecting to that notice and respondents will not be heard to do so. Dillon on Sales under Deeds of Trust; 2 Am. Law Reg. (N. S.) sec. 37, p. 739; sec. 28, p. 721; and cases cited; Greenleaf v. Queen, 1 Ret. 138; Beebe v. De Baum, 3 Eng. 510; Echols v. Dimmick, 2 Stew. 144; Foster v. Gorie, 5 Ala. 428; Gift v. Anderson, 5 Humph. 577; Hall v. Harris, 11 Tex. 300; Wightman v. Doe, 24 Miss. 675. Moreover, the notice given by Wolff, the trustee in the deed of trust, was sufficient, and the sale was not void for want of notice. No one could have been, or was, misled by it. Gray v. Shaw, 14 Mo. 341; Powers v. Kruckhoff, 41 Mo. 425; Stephenson v. January, 49 Mo. 465. And the change of date from Monday, May 22, to Monday, May 23, made so soon after the first insertion, did not avoid the sale. Sayles v. Smith, 12 Wendell, 60; Jackson v. Clark, 7 Johns. Rep. 225; Dana v. Farrington, 4 Minn. 437; Bennett v. Brundage, 8 Minn. 432; DeJarnett v. DeGiverville, 56 Mo. 440; Jones on Mortgages, sec. 1874. (6) The order appointing the receiver was erroneous, because, after the application for change of venue was filed, the court should not have done anything in the case save to allow the change, and every subsequent act of the court is erroneous. Colvin v. Six, 79 Mo. 198; State v. Daniels, 66 Mo. 192. And it was improper to sequestrate the rents, before foreclosure, as it does not appear that any lien was given on them by the terms of the deed of trust. 1 Jones on Mortgage, secs. 771, 772. Until foreclosure, the rents belong to the mortgagor. In re Ass'n, 96 Mo. 632. It was erroneous and oppressive to oust respondent from her home by a mere interlocutory order, made on an ex parte hearing, and without any right of appeal from the order. Callanan v. Shaw,9 Iowa, 183; Morrison v. Buckner, Hemp. 442; Hackett v. Snow, 10 Ir. Eq. 220. And such an order was further erroneous on proceedings to foreclose the deed of trust described in petition. Oliver v. Decatur, 4 Cranch C. C. 455; Berney v. Sewell, Jac. and W. 1647; Ackland v. Gravener, 31 Bear. 55. (7) Marcus A. Wolff had no interest in the property; he was merely a trustee to sell and execute a power, and was not a proper party to this suit. Rogers v. Tucker, 94 Mo. 352. (8) There is a misjoinder of parties plaintiffs; Hughes is not a necessary party. See cases cited under point 1, ante. (9) Edward Ward was not retained as a party defendant in the amended petition, but he was, of course, a necessary party. The omission of the name from the title is bad on demurrer, and it is not supplied by any sufficient allegation in the body of the petition. Bliss on Code Plead., sec. 145. (10) The appellant was oppressed and injured, and was put to unnecessary cost and expense, and deprived of her constitutional right of trial by jury, by the erroneous action of the court below.

Ellerbe & Hicks for respondents.

(1) The petition stated a case in equity; the relief sought, and to which plaintiffs were entitled under the facts alleged, could not be obtained at law. Hence, the cause was not triable by a jury, and the change of venue, asked on the ground of "undue influence over the inhabitants," was properly refused. Lee v. Smith, 84 Mo. 304. (2) The application for change of venue, on the ground of plaintiffs' "undue influence over the mind of the judge," shows, on its face, that knowledge of such influence came to the applicant at the time of the institution of the suit, and before any steps were taken therein by such applicant. Subsequent to such knowledge, various steps were taken by the applicant in the cause, and various matters presented to the court for consideration. The court was in constant session, and no reason appears or was given for appellants' delay in making such application. Under such circumstances, the application was properly denied. State ex rel. v. Matlock, 82 Mo. 455. Whether the application was made as soon as practicable after information received, is a question resting in the sound discretion of the trial court. State v. Matlock, cited supra. The same application for change of venue was considered by the St. Louis court of appeals, upon a petition for a writ of prohibition against the trial judge. State ex rel. v. Lubke, 29 Mo.App. 555. (3) The sale by the trustee was invalid by reason of the defect in the notice, it not having been published the required number of days. Whether invalid or not, since it stands admitted that appellants have constantly asserted its invalidity, they should not be heard to assert its validity. (4) The trustee's sale being invalid, the cancellation of the trustee's deed and of the deed of trust subsequently made to Hughes, was essential to a new sale. Upon the faces of such deeds and the record thereof, they appeared regular and valid, and divested the title of the trustee and appellants. No sale, either upon foreclosure or upon re-execution of the power of sale, could have been made with fairness to appellants or respondents. While such deeds remained apparently in force, no purchaser could have been found. (5) Under the facts alleged, plaintiffs were entitled to a cancellation of the deeds referred to, and to an accounting and judicial ascertainment of the sums due them, and to a sale of the mortgaged premises. A judicial determination of these matters was necessary to a final adjudication of the rights of the parties, and to afford complete relief. All the parties concerned in the title to the mortgaged premises were proper parties. Henry v. McKerlie, 78 Mo. 416, and cases there reviewed; Mastin v. Halley, 61 Mo. 196; Jones v. Mack, 53 Mo. 147; Beedle v. Mead, 81 Mo. 297; 2 Pomeroy, Eq., sec. 834. (6) Appellants made no objection and saved no exception, as to the appointment of a receiver, nor is any of the evidence upon which the court below made the appointment preserved in the record. Hence, the propriety of such appointment will not be reviewed upon appeal. The receiver was properly appointed. High on Receivers, secs. 643, 646; In re Life Ass'n, 96 Mo. 637; Cox v. Volkert, 86 Mo. 505. (7) The mere omission from the caption of an amended petition of the name of one of the defendants is of no significance. Although Edward Ward is not named in the caption, he is named and retained as a defendant throughout the body of the petition. State ex rel. v. Patton, 42 Mo. 537, cited in Bliss on Code Pleading, sec. 145; Headlee v. Cloud, 51 Mo. 301; Fugle v. Hobbs, 42 Mo. 537. (8) It is submitted, that the decree as entered below was proper, and that the objections now urged are captious and without substantial merit.

OPINION

Thomas, J.

On January 20, 1888, the 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 courtroom number 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 the appellants' counsel in this court 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 twenty-third 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 that 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 the plaintiffs applied for the appointment of a receiver, and at the instance of defendant, Catherine Ward, this was continued to January 31, 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. Moffett receiver, to take charge of and manage the property in controversy during the litigation.

On the twentieth day of March, plaintiffs filed an amended petition, as follows:

"...