133 Mo. App. 477 | Mo. Ct. App. | 1908
This is a suit to adjudicate the conflicting claims of Joseph Mullett and S. J. Oswald to a certain fund in the hands of the plaintiff, J. M'. Grooms. The undisputed facts are as follows:
The interpleader Oswald claimed and introduced evidence to sustain his claim that at the time he and Mullett went the security of the Paxtons on said $750 note, it was agreed that the latter would give them a second deed of trust on said realty to indemnify them as such securities; and that Mullett when he had the deed prepared provided therein for indemnity to himself
Oswald also attacks the sale under the second deed of trust as irregular, for the reason that it was not made by the trustee at the request of the holder of the note, but at the request of Mullett. The deed of trust provides that the sale shall be made at the request of the holder of the note; but, as the bank was not a party to the deed, it had no interest in the matter, and was not likely to make such request except as a mere matter of compliance with the wishes of the beneficiaries. We do not consider it a matter of importance, for the reason that Oswald does not seek to set aside the sale, nor, as for that matter, does he seek to have the trust deed reformed so as to cut out that part providing for indemnity to Mullett as security on the $600 note to Bergmann. He asks only that the latter be postponed in favor of the indemnity to himself and Mullett on the $750 note. And the court so decreed.
The finding of the court that Mullett paid one-half of the sum realized by the sale made by Waller, the trustee on said note, is contrary to the agreed admission of the parties at the trial. The agreement was as follows: “It is agreed by the respective parties by their attorneys, that out of the amount received by J. A. Waller from Joseph Mullett for the purchase price of said real estate by Mullett from said Waller as trustee, the sum of $127.63 was paid over by said Waller to the Cooper County Bank on the $750 note, on the 29th day of May, 1907, and that the balance of said note,
As the trustee’s deed vested in Mullett the legal title to the property, he became the owner of the fee, subject to' the prior lien. [Hume v. Hopkins, 140 Mo. 65; Schanewerk v. Hoberecht, 117 Mo. 22.] And, as such owner, he was entitled to surplus proceeds realized from the sale under the first mortgage.
The appellant makes objection to the action of the court in allowing plaintiff, as part of his cost, an attorney’s fee. As there was no appeal from the judgment in that case, we cannot consider the objections. Besides, he was entitled to the allowance. [Woodmen of the World v. Wood, 100 Mo. App. 655.]
Other questions raised need not be discussed, as what has already been decided disposes of the case. The cause is reversed with directions to the lower court to enter up judgment for the interpleader Mullett for the fund in controversy.