221 Mo. 315 | Mo. | 1909
This is a suit brought by the-plaintiff against the defendants in the court below for the purpose of setting aside a trustee’s sale, and to have the deed of trust declared null and void, and for such other relief as equity might require.
The situation grew out of three contracts originally between John W. P. Allin and the - Home CoOperative Company, a copartnership organized by certain parties of Kansas City, Missouri, for the purpose of securing homes for its various contract-holders. The Home Co-Operative Company was a copartnership, created by articles of agreement on May 9, 1901. The articles of copartnership provided that the chief place of business should be Kansas City, Missouri, but that branch and local offices might be had at any place that would facilitate the business of the com
It was also provided in the articles that seven members should constitute a quorum for the transaction of business.
The scheme of business contemplated that persons could purchase contracts from the Home Co-Operative Company, and by the payments therein provided for, become entitled, upon what is designated as the maturity of the contract, to have a home purchased for him by the company. The contract-holder was to pay a certain amount in proportion to the number of contracts he had.
The character of the contract is fully set forth in the record.
In May, 1901, John W. P. Allin took three of these contracts from the Home Co-Operative Company, numbered ten, eleven and twelve. These contracts were between the Home Co-Operative Company and John W. P. Allin, and with all other parties who made like contracts of co-operation with the parties. The scope of the contract, therefore, was such that it was not only between the Home Co-Operative Company and the party to the particular contract, but was likewise with all other parties holding similar contracts. The contract further provided that whenever there should be accumulated fifty dollars from
The contracts further provided that they might be assigned in writing, and also that if the party to the contract, or his assignee, was unable to pay by reason of loss of employment, a forfeiture should not be declared before the time of his last payment equal to the time of payments already made on the advancements.
Allin’s contracts matured some time in December, 1902; the property in question was purchased on-his behalf. A purchase contract was issued to him, and prior to the time of the execution of the trust deed involved in this suit, the contract took the place of a •deed of trust and was held in escrow. On April 10,1903, Allin made, executed and delivered a deed of trust conveying the property-to W. B. Sullivan, as trustee for the Home Co-Operative Company, said deed of trust taking the place of the arrangement theretofore existing. The deed of trust made the terms of the contract hereinbefore referred to a part thereof, and provided for a monthly installment payment of $16.05 on or before the tenth day of each month until paid. The deed of trust also provided that in case of death, inability, refusal to act, or absence from Jackson county, Missouri, of the trustee, W. B. Sullivan, then the sheriff of Jackson county, Missouri, should become Ms successor.
The deed of trust contains the provision that if the grantor should be unable to pay his monthly installments by loss of employment, a forfeiture of the agreement should not be declared before the time after the last payment equal to the time of payments paid
It further appears from the record, however, as testified to by Sullivan himself in a deposition which was introduced at the trial of the case, that Sullivan became, or attempted to become, the absolute owner of the business of the Home Co-Operative Company in January, 1903. After this purchase of property by Sullivan, the deed of trust involved in this case was given, making Sullivan the trustee.
On June 22, 1903, the plaintiff in this suit, John W. Duncan, purchased this lot from Allin by a general warranty deed," subject to the deed of trust, which Duncan assumed and agreed to pay. The deed of trust as made by Allin was to secure the payment of $3,200 less $315 then to the credit of Allin as payments on the property. It also appears that in June, 1903, the plaintiff, Duncan, paid upon the indebtedness the further sum of $200, and thereafter, in July, 1904, the further sum of $32.10.
For a time after Sullivan purchased the property he maintained an office in Kansas City as originally contemplated by the articles of copartnership of the Home Co-Operative Company. Subsequent to the payment made by Duncan in July, 1904, and prior to default in the installment payments, Sullivan discontinued any office of the Home Co-Operative Company or of himself, in Kansas City, Missouri. Prior to
The plaintiff testified he had made arrangements by which a sale of the property could be consummated, and visited Mr. Steele with reference to the same, and then for the first time learned that the property had been published and sold. ’ The property was sold as a matter of form to Raymond Picquet, Who was not present and was evidently acting on behalf of Sullivan, as found by the court.
Prior to the sale, the plaintiff on about November 1,1904, saw Mr. Steele and inquired when Mr. Sullivan would be in Kansas City. According to plaintiff, this
The evidence tended to show that the plaintiff was never advised where payments could be made to Sullivan after' the offices were discontinued at Kansas City, Missouri, but on the other hand, he wrote Sullivan and made no effort to pay the defaulted installments.
Plaintiff, after discovering the sale, promptly brought the suit at bar to set the same aside, charging, among other things,, conspiracy between Sullivan and Picquet to cheat and defraud the plaintiff out of his rights in the property; that no forfeiture had been made, and that they well knew that there was no forfeiture; that the Home Co-Operative Company was a fraudulent concern, and was denied the use of the mails, and that the plaintiff could not pay at St. Louis, even if he had been required to do so by the terms of the contract; that Picquet was not an innocent purchaser of said property, but purchased it really, for W. B. Sullivan himself; that Sullivan was a resident of -St. Louis, Missouri, at the time of the alleged forfeiture, and was not competent to act as trustee. These are some of the salient allegations of the petition.
The petition asked in the prayer that the sale be set aside, and that the trust deed be cancelled, and for such further relief as justice and equity might require. The answer of W. B. Sullivan, also designated as the answer of the Home Co-Operative Company, denied each and every allegation set out in plaintiff’s petition, except as herein admitted. It then admits that Allin was the owner of the three separate contracts entered into by and between Allin and the Home Co-Operative Company; admitted that Allin was the owner of the property as set out in plaintiff’s
The main contest was between plaintiff and Sullivan as Picquet was a mere figurehead in the whole.-transaction.
The evidence showed, and the court so found, that’ Allin had paid on the amount of the indebtedness $315, and that the plaintiff had paid $232.10. The indebtedness bore no interest. The evidence tended to show that the property was worth $4,000 or more, and the court found it to be worth $4,00-0-. At the sale the property was struck off for $1,005.
The court, after finding the ownership of the property in Allin and Duncan, as herein briefly stated, and the amounts paid by Allin and Duncan, also made a finding in its decree that the monthly payments falling due on August 10, 1904, and thereafter, were not paid upon the said indebtedness, and thereby a default occurred as found in its decree. The court also found that prior to the sale of said real estate by said W. B. Sullivan as trustee,- said Sullivan was the owner, or one of the owners of the property of the Home CoOperative Company, and as such was the beneficiary therein, and that said real estate was in fact purchased' by and for the benefit and to the use of said W. B.. Sullivan, and the name of said Raymond Picquet was used solely and only for the purpose of giving color or right and authority for the sale and conveyance so made. The court in its decree set aside the sale as fraudulent, and then further decreed that the plaintiff" be permitted to redeem the premises above described
The plaintiff, being dissatisfied with the decree, filed a motion for a new trial, as did also the defendants, but the latter was withdrawn. The court overruled the motion for new trial, and the plaintiff brings the suit here by appeal.
I. No appeal was taken by defendants from the decree of the circuit court setting aside the sale and deed made by defendant Sullivan to Picquet, and to that extent the decree must stand. It is obvious, v© think, that the circuit court set aside the sale and deed on the ground that Sullivan, the trustee, was a member of the copartnership to which Allin’s debt was originally made which plaintiff assumed, and made the sale to himself secretly, though using Picquet’s name as purchaser and grantee in the deed. It is absolutely certain that Picquet was not present when the sale was made and knew nothing of it and did not pay any part of the bid. Sullivan merely took this method of having the title eventually conveyed to himself and the court properly held the sale was fraudulent.
But plaintiff was not satisfied with the decree and insists that the circuit court should have cancelled the deed of trust altogether or decreed that no foreclosure could be enforced so long as Sullivan was the trustee and owner of the indebtedness. By reference to the statement and testimony, no doubt can be entertained That the copartnership, known as the Home Co-Opera'Kve Company, furnished the money and purchased the
As to the time for redemption, it was said by •Judge Sherwood in Stephenson v. Kilpatrick, 166 Mo. 1. c. 270: “It is not improper to add that courts of •equity usually give six months in which to redeem and that it is not customary to give so short a time .as thirty days in which to redeem.” This is far from holding that in every case, irrespective of conditions, a court of equity must give at least six months in which to redeem. In our opinion there is no such fixed time but it must be left to the wise discretion of the chancellor who tries the case and unless that discretion is abused it will furnish no ground for a reversal of the judgment. The failure to give more than sixty days was not urged as a ground for new trial. The case was not tried on that theory, and the judgment should not be disturbed on that ground.
II. We are thus brought to the further contention that the court should have only required plaintiff to pay the amount of the past due monthly payments falling due on August 10, 1904, and each month thereafter until the rendition of the decree. In support of this contention we are cited to Whelan v. Reilly, 61 Mo. 565, and Philips v. Bailey, 82 Mo. 639. In the first of these cases, it was held by the court that where by the terms of a deed of trust, on failure to pay the interest notes as they matured, the whole amount of principal and interest forthwith became due and the trustee was empowered to sell and for default in pay
In his bill to redeem, the plaintiff alleges that “ever since he has had knowledge of the sale of said real estate by defendant, Sullivan, as aforesaid, plaintiff has been willing and ready and hereby offers to pay upon the debt secured by said deed of trust whatever amount was or is due thereon under the terms of said contract and plaintiff now here offers to- pay thereon whatever amount this court shall find to be due and direct to be paid -thereon and asks if any amount shall be found due upon said debt secured by said deed of trust that he may be permitted to redeem
This view of the equities of the case was urged upon the circuit court in the petition and was renewed in the motion for a rehearing, and in our opinion, the court erred in denying this prayer of the petition, and its decree should be modified to that extent.
Before this cause was tried in the circuit court, it appears from the intervening petition of Louis Schubert, a creditor and contract-holder of said Home Co-Operative Company, that on the 3d day of July, 1905, one Herman H. Wehrs, also a contract-holder, filed his petition in the circuit court of St. Louis county, in the nature of a general creditor’s bill, in behalf of himself and all other creditors and contract-holders against said company and William B. Sullivan, for
The decree of the circuit court is reversed and the cause remanded with directions to the circuit4 court to modify its decree by taking an account of all the installments due from plaintiff on said debt up to the .time of taking said account, and then decree that if plaintiff shall’by a day and time fixed by the