Girard Life Insurance Annuity & Trust Co. v. Mangold

83 Mo. App. 281 | Mo. Ct. App. | 1900

BOND, J.

This is an action for trespass brought by a beneficiary in a deed of trust on certain real estate for tbe cutting and removal of timber, between tbe date of tbe execution of tbe deed of trust and tbe foreclosure thereof, it being alleged that tbe proceeds of tbe foreclosure did not satisfy tbe secured indebtedness. There was evidence tending to prove tbe allegations of tbe petition. Tbe learned circuit judge announced during tbe trial that be was of opinion “that tbe defendant was not liable for tbe cutting of timber before tbe maturity of tbe deed of trust.” In accordance with this view at tbe end of tbe trial be directed a verdict for defendant. Plaintiff appealed.

Tbe only question presented is, can tbe beneficiary or trustee in a deed of trust after foreclosure and entry thereunder bave trespass for injuries to tbe land between tbe execution of tbe deed and prior to tbe foreclosure sale, provided tbat did not pay off tbe secured debt? Tbe supreme court bas answered tbis question in tbe affirmative. Chouteau v. Boughton, 100 Mo. 406; followed in Heitkamp v. Granite Company, 59 Mo. App. 244. Tbe ruling tbus announced is controlling upon us, and necessitates a reversal of tbis judgment and tbe remanding of tbe cause, to be tried in conformity with tbe doctrine announced by tbe supreme court. It is so ordered.

.All concur.