Farmers' & Traders' Bank v. Kelsay

186 Mo. 648 | Mo. | 1905

GANTT, J.

— This cause is here practically on a second appeal. The first appeal is reported in Kelsay v. Farmers and Traders Bank, 166 Mo. 157.

That suit was one in equity to set aside a sale by the sheriff and to allow plaintiff to redeem his homestead. The circuit court made its decree for plaintiff and defendants appealed. The plaintiff in accordance with that decree on January 11, 1899, tendered the bank the full amount of the indebtedness then due, to-wit, $825, which the bank refused. At the October term, 1901, this court affirmed the decree of the circuit court.

After the judgment was affirmed, the purchasers at the execution sale, to-wit, Charles P. and Warren T. Miller, executed a deed conveying said lands to said Kelsay and the hank tendered it to him and thereupon said Kelsay again tendered the sum of $825 to the bank, the same amount tendered on January 11, 1899, but the bank, one of the plaintiffs herein, refused to accept said tender unless Kelsay would pay interest at the rate of eight-per cent compounded up to the date of the last tender, January 16, 1902, and then plaintiff brought this new suit to compel Kelsay to pay said notes and interest.

This suit might properly be denominated a suit in equity to construe the opinion and judgment of this court in Kelsay v. Farmers and Traders Bank et al., 166 Mo. 157.

In that case the decree of the circuit court of Moniteau county was in all things affirmed. Now the decree of the circuit court was that Charles P. and Warren T. Miller reconvey all their right, title and interest in the real estate in said decree described and by them purchased at the sale made by the said Charles G. Inglish, December 28, 1897, to the plaintiff, J. R. Kelsay, upon the payment by him or the tender of the amount due on both of said notes at the date of the said tender to the defendant, the Farmers & Traders Bank; that said payment or tender should be made to said Farmers & Traders Bank on or before the — day of January, 1899, and it was further ordered that the said deed by Inglish to Charles P. and Warren T. Miller be and the same is hereby annulled, cancelled, vacated and set aside and for naught held, and the said bank was ordered upon the tender of the amount due on said notes at the date hereinbefore mentioned, to-wit, January, 1899, to enter satisfaction on the margin of the record and that Kelsay should pay the clerk the satisfaction fee for so doing.

By this suit the Farmers & Traders Bank and the Millers and Inglish seek to reopen the issues thus finally settled in the circuit court and by this court, and have a new amount fixed as a satisfaction of such notes; in other words, they seek to have interest from January, 1899, added to the amount fixed by the circuit court.

In our view of the case, the matters in dispute were all finally adjudicated by the circuit court and a definite amount fixed and settled and a day certain on which it was to be paid. That amount it is agreed was tendered to the bank, and it refused it, and now it seeks to add the cost of a new suit and to recover interest to be compounded for six years more.

Counsel for plaintiff cite us to many cases as to what constitutes a good tender and to the necessity of keeping a tender good in order to stop the running of interest. In our opinion this is not a question of tender. It is a question of obedience to a decree of a court of competent jurisdiction, with full authority over the parties to the suit and the subject-matter.

By that judgment and decree the defendants in that suit, the plaintiffs here, were ordered and directed to make a deed and satisfy a mortgage of record upon the payment of $825 when tendered to them. It is admitted it was tendered to them, but instead of accepting it and obeying the decree of the court, they refused to accept it and commenced a new action, the purpose of which is to avoid the solemn decree of the court and to fasten on the plaintiff in that suit, the defendant herein, interest for six years compounded at the rate of eight per cent. They can not in this manner modify and set aside the decree entered in the circuit court and affirmed in this. Their petition states no ground for opening that decree. They can not entail upon defendant Kelsay an onerous burden of interest and costs by their direct and positive refusal to obey the decree of the court which has become final and irrevocable. It is an ancient maxim of the law that no one shall take advantage of his own wrong. To entertain this suit and •uphold the decree in this case would be grossly inequitable to the defendant Kelsay. Prior to the commencement of his suit, he tendered to the bank all he owed it on his notes for which it held a mortgage on his homestead and it refused to accept it. He brought his suit to be allowed to redeem ánd the circuit court granted him relief on the terms that he tender or pay to the bank by a day certain, January, 1899, the amount of the two notes and interest and he promptly tendered the same and it was refused.

The bank appealed to this court, and the judgment was affirmed, and again Kelsay tendered the amoiint found by the circuit court, and again the bank refused it.

The plaintiff Kelsay, in the former suit, performed every condition required of him by the circuit court and this court as the price of his right to redeem his homestead. Those judgments were complete and final adjudications of the rights of the several parties thereto. They stand unreversed and unmodified in any manner, and the matters complained of in this action were finally adjudicated in that suit, as fully appears from the record. It would seem that this action is based upon the concluding sentence of the opinion in Kelsay v. Farmers & Traders Bank, 166 Mo. 157, to-wit, “The decree of the court permitting plaintiff to redeem by paying the amount of the two notes and interest secured by the two deeds of trust was just, and is affirmed.” The contention is that thereby we meant to say that before plaintiff could redeem he must pay the notes and all interest down to the date of the affirmance of that decree in this court. This is a total misapprehension of the language used. The Farmers & Traders Bank had confederated with the Millers to charge Kelsay’s homestead with other debts for which it was not liable. The circuit court held it could only be subjected to the mortgage debts and interest, and fixed January, 1899, as the date of the tender of the notes and interest to that date and exonerated the homestead from the other debts. It was that finding we approved and affirmed, as we did the decree in all other respects. We did not hold that the Farmers & Traders Bank conld contumaciously refuse to abide by the decree of the circuit court after it was affirmed by this court, and refuse to accept Ke]say’s tender of the amount the court had decreed, and thus extend its loan at eight per cent compound interest for four years more and absorb the whole homestead of Kelsay. We meant just what we said, that the circuit court’s decree fixing the amount of $825 as the price of redemption and January, 1899, as the time to pay it, was affirmed.

The judgment of the circuit court is reversed. The parties can comply with the decree of this court affirming the judgment of the circuit court of Moniteau county by James B. Kelsay again tendering. to the Farmers & Traders Bank the sum of $825, and the fee for the satisfaction of the record of said mortgage, and if the hank refuses it, then he can apply to the circuit court for leave to deposit the same with the clerk of the court and for such supplemental remedial orders as may he necessary to enforce the decree of the circuit court.

Burgess, P. J., and Fox, J., concur.