*1 516
Litigants permitted will not be constitutionalitj'- to attack the or statute upon existing ordinance which does impinge their rights. The if ordinance, any vested retroactive, would not disturb right vested of defendant, because on' date the effective of the or- operate it had filling dinance no to either build or vested place station at the in question; posi- and for that reason is not a challenge constitutionality ground tion to the ordinance rights. that it invades vested v. Modern Brotherhood, [Ordelheide 1105; 226 125 County Lydy, Mo. S. W. Green 263 77, 98, Mo. 376; 172 Railroad, S. W. Gould v. 713, 730, Mo. S. W. 135.] Statutes ordinances are until one assumed valid some whose rights injuriously complains. are affected v. Modern [Ordelheide Brotherhood, supra, Since posi- defendant 210.] constitutionality ordinance, raise the tion to same as if raised at all. jurisdiction stated, reasons has
For the this court no and the case Appeals. transferred the St. Louis should be Court of It is so All concur. ordered. Bigham et al., Appellants. v. B. B. S. W. Hoffman
Samuel (2d) 125. One, February 3, Division 1930. *3 Horace appellants. Merritt respondent. Byron Landis, Jr., and G.
John *4 parcel of land a quiet to the title suit to E.LLISON, is a C. This of judgment 1925. The 15, filed December Joseph, St. in de- plaintiff, and the was for Court County Buchanan Circuit defend- The other appealed. have Bigham AYaehter fendants appellant. an Stone, ant, 1921, 1, Byron Spencer. On June title is of source The common Davis, Marie controversy C. and John in estate the real deeded payment securing the trust deed a taking purchase-money back July instruments were recorded Both for these $6,000, aof note 2, 1921. About later, two weeks July oil 15tli, conveyed the Davises the property E. G. Maxwell. This Maxwell deed was withheld from nearly record seventeen months, until 4, December 1923. In the August meantime, Bigham on 21, 1923, appellant brought a suit in the County Buchanan against Circuit Court two Davises and one E. II. 'Warrensburg, claiming a half interest land; in the the remaining belonged half interest Warrens- burg; and that John and Marie Davis were merely seized the title as trustees for petition the two. sought accounting. an A also pendens lis notice was in filed the Eecorder’s office day, the next August 22, 1923. Bigham’s
While pending, May suit was 23, on 1924, the defendant (therein) E. Warrensburg II. adjudged was bankrupt and the de- (herein) fendant Wm. M. appointed Stone his trustee bank- ruptcy. July 11, On E. G. 1924, Maxwell, who had received a deed from the Davises in 1921 quit-claimed as above recited, Stone, trustee bankruptcy, brought Bigham’s and the latter ivas into any defendant. At rate, appeared exceptions he. and filed report 2, referee therein. On October 1924, the circuit court entered a final divesting decree the cause title out of John Bigham C. and vesting Marie Davis and it in and Warrensburg, giving interest, “subject legal each an half undivided to all liens existing against encumbrances Bigham the same.” was further a, money against judgment awarded Warrensburg $4500. An was presently Bigham execution issued to under which Warrens- burg’s half interest in real estate was sold the sheriff to the appellant Wachter, Bigham’s daughter, who November through Bigham 1924. Thus, in the suit and execu- decree appellants Bigham tion sale, and Wachter claim to be the owners of the real estate. Byron mortgagee, party Spencer, made a
Bigham adjudicate suit and the court did assume his interest any way. During pendency pur- suit he caused his chase-money trust, mortgage, or deed of to be foreclosed under the power of in- contained, payment sale therein for default place terest and taxes. The sale took at the east front door of the Byron Joseph he, 25, 1924, Spencer, court house St. on June mortgagee, $3050 bid in and received a trustee’s August 1924, nearly was recorded two months be- in Bigham’s decree was case on fore the final rendered October conveyed recited. and his thereafter as above wife *5 by general warranty plaintiff-respondent property deed to the Hoff- 18, 1924, November man, November and recorded dated bought execu- in the appellant ten before 'Wachter at days about sale on lion November 28th. respondent The Hoffman claims title through Spencer this deed. petition ais form, conventional skeleton alleging plain- tiff be the to owner of the land, that the defendants in- claim some therein, praying terest and they any that be divested of right, such title or interest and that plaintiff. the title be vested in the The de- fendant alleging Stone filed answer discharge his in as trustee bank- ruptcy disclaiming any property. in interest The defend- Bigham ants and Wachter answered separately, claim- former ing through Bigham a title to one-half interest decree through latter a half interest execution sale There- thereon. Bighams asking after amended their answer for an account- ing (which of rents since July 1, collected was about time Spencer property praying bid sale), at foreclosure general for affirmative and relief. stage proceedings Byron
At this common Spencer, the source intervening title, petition, setting filed an out reason of that warranty in covenants of his Hoffman, deed to he obligated defend Hoffman’s lengthy to title. Then a follows (Spencer) recital to the effect when he sold controversy along John 0. and Marie Davis in 1921, with other appellant Bigham estate, the undertook to act as his real estate real agent duty represent and was in- commission, bound to his secretly fairly, instead, purchaser part terests but became the of a through fraudulently land the Davises and interest induced price. petition (Spencer) accept inadequate him an prays adjudge in Hoffman, the court the title but if the defendants any therein, required they pay be found to have interest purchase mortgage $6,000 principal money interest, of his with etc.; Bigham required taxes, and that $500 back to refund the pay sum of received, real estate commission had also alleged representing $2,000 the amount which he had been disputed properties land and in the sale of the the other cheated the two Davises.
Shortly plaintiff (respondent) reply Hoffman filed thereafter Bigham appellants charging Bigham’s answer the amended (much agent Spencer’s properties sale of as a real estate fraud intervening petition) in his Spencer had done also affirma- pleading (Hoffman’s) of his tively title, par- the details chain of proceedings Spencer’s purchase-money ticularly under the foreclosure purchased. which he avers he on faith of these trust, As to duly published foreclosure notice was reply twenty states the Daily in the Stock Yards days to June Journal. It from June Bigham’s alleged the decree in bind- further predecessor Spencer, (Hoffman) because his ing him title who *6 land party owned the when tin* decree was was rendered, not made a reply prays plaintiff adjudged to the suit. The that the be the owner of the in- fee and that the defendants decreed to have be no reply substantially A therein. was terest similar to the answer filed appellant of the Wachter. Bigliam
The defendants and Wachter in- filed a demurrer to the Spencer. tervening Byron petition of While demurrer pend- the ing replies plaintiff filed his answers, the Hoffman to their which Spencer summarized in paragraph. thereupon we have the last intervening his withdrew before the petition demurrer had been de- The termined. defendants then moved to strike out reply Hoffman’s attempted Bigham’s ground plead answer on the that it to a. to cause alleged up in the petition, action not the and that matter set could only amending by petition. be available made over- court rejoinder They motion. ruled the filed a to the reply, then out. the court struck contesting filed
Next, the defendants a second amended answer setting length petition, Bigham’s some in proceedings out at against Warrensburg the Davises sale, and and execution pendens charging that of the Us plaintiff because notice the, by was bound the decree in that case. The answer further Hoffman Bigham Spencer represented in property denied the sale pleaded C. Davis defendants’ John and Marie foreclosure (Big- trust purchase-money, his deed of was made to embarrass him ham) against his suit Warrensburg, Davises and and that illegal published it was because the advertisement of the sale was days By twenty, required nineteen instead of statute. property the defendants offered to redeem the their answer then of trust, amount due on the and asked an pay deed account- ing profits. rents and defendant-appellants trial came on counsel ob-
When the Spencer’s intervening saying: jected petition, withdrawal of intervening object further to the withdrawal of the “Defendants Byron Spencer. He is in court and we don’t him petition by want objection overruled, following of court.’’ The but get out intervening refiled his petition, defendants’ plaintiff’s petition lengthy theretofore filed was answer intervening an agreement open considered answer to the court well. petition as Hoffman with- introduced evidence trial
At the conveyances of title, chain objection including his out purchase-money Spencer’s under deed of tiuist, deed trustee’s day being duly acknowledged sale, of. June instrument August 13, 1924, in book for record recorded 1924, filed County. of Buchanan of Deeds of the Recoi-der page office provided any advertisement of trust deed foreclosure should days. published twenty The trustee’s declared this had done, being following been form : recital having previously given twenty days’
. time, . notice place sold, terms and and of advertise- published printed Daily ment *7 and the Stock Yard’s Journal news- City paper printed published Joseph, of of County and in the St. Missouri, of of Buchanan and State last insertion said advertise- being prior day ment not more than one week of said publisher copy advertisement, with affidavit a of the of publication, newspaper, proven its is and said hereto attached of hereof, . part a . .” made publisher’s attached referred affidavit part it, deed, a of was as follows: and recorded as
trustee’s duly publisher being on his oath he is sworn that “P. R. Manifold published in Daily Journal, newspaper a Stock Yards of the and that advertise- Missouri, the State of City Joseph, of in St. a Davis, and Marie of which John C. of Trustee’s Sale in ment Twenty (20) published paper copy annexed was is hereto said day 25th day June, 1924 to the of June, of days the 4th from inclusive. Publisher.” “P. Manifold, R. Notary Brumbaugh, E. Glen
(Subscribed sworn to before 1924.) Public, August 13, relating to the only by the defendants introduced evidence pur- respondent’s foreclosure under the notice of of
publication following. On cross-examination trust, was the chase-money asked: appellant Bigham was property? “Q. the advertisement knew all about You Q. Never heard I find but couldn’t. No, tried to out A. sir—what A. No.” of it? examination:
And on redirect see the “Q. you acquainted you with and do sometimes Are I I when ever saw No, A. can’t remember Journal? Yards Stock it. daily it is a paper published to be that “Q. know such You so; it. I couldn’t swear to A. I think paper? ‘‘ Sundays you know Q. issued know whether it is on you Do —do it. daily I think is. I wouldn’t swear to paper? A. it it that get I want to that record all, I think that “Mr. Merritt-. Stock I to show Yards court, and want that bankrupt from the Sundays.” published on but not daily paper is a Journal long testimony witness, of this after At conclusion publication foreclosure notice affidavit deed and trustee’s had been admitted in evidence objedion, ap- without counsel for pellants made and the following objection: court overruled the I object want to the trustee’s deed offered in Merritt: “Mr. evidence Mr. dated June 30 Landis, for the [should 25] proof publication' reason appearing that deed is said proper proof days it fads to that set tlie and dates on [out] appeared which said advertisement in the Stock Journal Yards but plaintiff states the conclusion of the who verified it that published twenty days.” many pages bearing
There are of evidence in the abstract on Bigharn appellant other chiefly, the conduct of the when matters — negotiated Spencer property a sale of the from John C. and during Marie facts Big- Davis shown the trial of appellant Bigharn say ham’s filed 1923. The further, did however, $6,000-purchase- he was unaware the interest money-mortgage note and the taxes on the were delin- pay quent, asked Mm either, never and that Spencer’s him said Spencer told he had sold the notes. He also *8 litigation him in his with the Davises and attitude toward 'Warrens- unfriendly. burg in the take it* But view we of the case will was to unnecessary refer further all this. to merely adjudged plaintiff to be of The decree owner any title, simple right, and divested interest or estate land in fee might or Nothing have claim to have. at all which the defendants concerning right defendant’s claim to a mentioned is decided or accounting profits, except of rents and redemption, for an of or decreeing by by the whole implication, title are denied claims those Hoffman. respondent purchase-money was lien. deed of trust a first Spencer’s I. passed and later at the foreclosure sale thereunder acquired he title simple, Hoffman was fee unless: on to W defective; foreclosure was publication’of notice have and can appellants for that reason as- (2) and the right redemption; (3) or, unless a of this action sert detrimentally way affected the de- was some Hoffman’s title suit; questions these in order. up shall take Bigharn’s We cree in the sale was complaint against the foreclosure that pleaded twenty. gleaned from days instead of As only nineteen advertised by appellants’ counsel, his statement propounded questions theory objection deed, trustee’s their to the his belated court and Daily was Journal not Stock Yards that the have been appears Sundays omitted the notice was with Sunday and that issued on prove paper they did But times. published nineteen published. We know Sundays when was or it on published was not
525 4 June 25, specified that from Juno inelusivo, dales publisher’s affidavit, twenty-two days. judicial was We can also take 4 Wednesdays the fact 25, notice of June 1924, that June were Sundays and that between the two dates three intervened. But we presume Sundays paper cannot was issued from on the fact that “daily” part (Fox the word of its Wright, was a name v. Cal. 1005, 1006); much say judicially Pac. can was less we Sunday. proof issued on There was a failure total of on this issue. appellants evidentiary the fact
However, failed in their that at- tack proceedings, on the foreclosure does not as a matter of dis- law pose quiet of the whole ease. In title the burden is on plaintiff prove contesting his (Jackson the bettor of two titles (Mo.), 7); though v. 292 W. Ward S. even the claim fail, yet plaintiff’s must defendant to the relief he seeks strength proof be measured offers. [Sanders contends in brief (Mo.), Respondent S. W. his Johnson 427.] regular, in our evidence foreclosure sale was shows the but support proof opinion insufficient and did warrant or simple him. failed be in It adjudging the fee decree required by published, as law—and show the foreclosxire notice Sun- though was issued Daily Yards Journal the Stock this even days. that in sales provides all Revised Statutes
Section power any mortgage under a of sale contained real estate days’ such twenty sale shall less notice of “not than trust given notice “shall be given.” requires such Section twenty times, continued to at least inserted advertisement newspaper having cities daily in counties day in some ours.) (Italics We take forty inhabitants or more.” thousand city County of more than judicial Buchanan contains notice * *9 Joseph therefore comes within the 40,000 inhabitants —St. —and designation of statute. the above twenty days’ required 2235, means Twenty notice, by as Section including the counting publication the but days the date of first not omitting publication counting the date of but or, first day sale, of 1919; Gray v. 129 Mo. (4), R. S. Worst, 7058 day of sale. the [See. however, standing This 585, alone, W. statute 31 S. 122, 130, 587.] weekly days’ daily publica or require twenty continuous not .does least one insertion of the notice at satisfied would be tion. It Mayor day. v. sale of Glas days twenty [Southworth before the 1168, publication 132 S. W. 108, first 115, 232 Mo. gow, 1170.] twenty-one 4, days June the before in this case was of the notice publication the offends this be said statute. cannot So it day. sale 526 daily in a provides
But 2236 the notice must inserted Section newspaper twenty day sale. continue to the of at least times and minimum of clearly a This means the advertisement must run twenty preceding An publication next the sale. days consecutive ap- day If notice were sale be counted. the insertion on of cannot paper ordinarily after pearing in an would come out afternoon it leaving only days is actual notice. One case the sale nineteen over, says prudence as a avoid the notice should matter of and-to mistakes up (German appear including day of sale every issue to and 315) ; when Stumpf, 311, 73 Mo. is doubtless true Bank and that morning paper as printed serve is in a and will advertisement But was written before the last reminder. that decision minute 209). statutory requirement (Laws p. 1885, statute was enacted day “To” sale. is is that notice be “continued to” of Ed.) (3 Dictionary (3 Law primarily of Bouviers a word exclusion Phrases, p. 7816; (2 Ser.) p. 929; 4 7 3283; Id. Id. p. Words & Ser.) (3 p. 507); considering' purpose context its and the up until to. notice be taken to mean must prima-facie The trustee’s deed introduced was its recitals. R. S. pertinent 2253, evidence the truth of of [Sec. proper compliance show a with the deed did But 1919.] given twenty days’ notice the sale had been statute. It said of Daily Journal, in the Stock the last insertion advertisement Yards being prior day than one week This obvious- not more sale. ly compliance statutory requirement that the did not show with the may day to the sale. The notice be continued recital have come through adapted reporting use of a advertise- deed form about (see statute), weekly papers reason, but whatever the ments publication. it does show due further, made no- expressly the trustee’s went
But says publisher’s part affidavit thereof. tice and The affidavit Twenty (20) days published “for from'the 4th advertisement was June, day day 25th inclusive.” Ac- June, to the cording this, up again, statute, to our view does not measure to the though grant language implies t-lie was even we advertisement twenty times. inserted published twenty means be-
If affidavit notice times ending ginning likely, on June seems most June day is because June and if not satisfied there law counting only twenty publications day one on the sale there were day, nineteen have been before as we have seen could meaning if enough. is On the other that there hand were during twenty-two day period beginning twenty June insertions impossible days tell ending on what June 4 and *10 might appear. One still of them have the did been sale publications
627 why day otherwise, include ii—and nothing there is — show publications whether the were continued to the day of sale. We do not how, see fidelity with text, the the affidavit can construed “for twenty read at least publication times on consecutive days 4 from including June to but not June 25.”
II. Since the foreclosure sale required was not advertised as law, on respondent’s showing, own it follows title ae from purchaser Spencer, only at that was 4n^re<^ legal subject title appellants Bigham of the Wachter, equity as owners of the of redemption, redeem the property paying the amount due under the deed of trust and note secured. is That the actual condition 166; (Wolff supra, 104 Mo. 16 W. Ward, 149, v. l. c. S. l. c. Adams 451; Lee, Carpenter, 634, v. 187 Mo. 86 S. W. Feller v. 613, 445, 1132) ; ap 124 319, 330, 1129, S. W. and since the Mo. defect charged peared the face the trustee’s deed 164 S. Burkhardt, 116, v. Mo. with thereof. notice [Rideout W. 506.] why appellants respondent urges reasons several other with- they did not act One is to redeem. allowed
should not guilty are of laches. sale and time after the in a reasonable jg clean with into court they do come not ^nofller see case, do we Considering circumstances hands. Until a decree was of laches. appellants can be convicted how the 1924, he had established 2, October Bigham’s suit on rendered redemption equity of part owner as a his interest acquire her did not appellant Wachter position to redeem. no was started 29, The instant suit 1924. until November interest Respondent year later. little than 15, 1925, a more December Roby Smith, v. and cites 470, L. sec. 653, 19 R. C. quotes from Ready 170 Mo. 967; Smith, v. 965,W. 168 S. 192, 199, Mo. 134, 144, 162 Mo. Cunningham, Baker 484, 486, and 70 S. W. year filed one eases suit was In the first these 447. S. W. one foreclosure; in the second case after months and eleven years. In instant case months, third two year and ten bringing and the the foreclosure elapsed between time interval after months, but the year six substantially one suit was or fourteen months. thirteen acquired title appellants connection with the evidence in carefully considered have We indicating any re- facts do find foregoing authorities bring appellants’ failure misled Spencer were spondent alleged respondent’s they did. It sooner than the suit during made on the were improvements reply that effect the record. Neither no find evidence but we interval, *11 528 anything
is indicating appellants there claim to the abandoned their redemption appeared contrary or Bigham have so. the done On prosecution against continued of suit Warrens- his Davis and burg If after the- sale foreclosure. foreclosure had been valid appellants year have which would within under had a redeem 2222, Sections Revised 1919. 2223, Since sale did Statutes not comply equitable governed by the statute matter with is to be equities require appellants considerations and think we that the given opportunity an to redeem. The facts Missouri cases by respondent cited far are from those in the different instant suit. point The next appellants is did come made that not into equity urged theory Bigham with clean hands. This is on the that guilty assuming of agent of breach trust in as real to act estate Spencer property Yl Yie sale of the to Davis at the
^or and being secretly purchase same time interested thereof. Rowley Rowley 152; cited are v. 197 (Mo.), cases S. W. 1001; Houtz 128 Hellman, 228 Mo. S. W. v. Carson Woods Bivert, (Mo.), S. W. and Creamer v. Mo. S. performance W. specific 1118. Part are cases, of these and the others sought moving are party actions which the aid a court of equity consequences reap to avoid the his own fraud or to benefit Of therefrom. course cannot be done. But in Spencer this case and Hoffman Spencer have ratified the sale made Bigham Warrensburg. to Davis as or straw trustee man and They recognize purchase-money legal con of trust as and binding tend the foreclosure sale thereunder so far as their side Bigham’s the transaction is concerned. But when it comes to right claiming they to redeem under that same deed trust say procurement he cannot so because of his fraud do of the conveyance. will say initial This do. not We do not-mean to ratify Spencer Bigham not damages, could and still sale sue recognized say legal but we do that since he chain title binding, deny Bigham’s and he cannot to redeem. appellants III. slight make some they contention that are simple owners in Spencer fee and that and Hoff- ^y Bigham’s C1-You^ decree suit al- man were parties though theory not thereto. Their seems to Spencer through this: Hoffman and claim the deed given of trust John C. and Marie Davis, was foreclosed Bigham pending while pendens suit after Us notice filed. The decree divested title out had been of the Davises. There- say adjudged stands fore, appellants, the Davises had no title got nothing mortgage purchase his at the fore- Bigham wholly wrong. closure sale. But this did claim adverse Spencer’s deed of trust in Ms did decree it, attack but expressly vested Bigham title in Warrensburg sub- ject existing incumbrances. given purchase- The Davises had this money deed of years trust over two agents before the suit was filed as Bigham trustees for and Warrensburg, all the evidence shows it was the consideration for and they got basis through of the title Plainly they estopped Davises. it; are dispute and the de- anyhow. cree did strike itat
IV. From what has been preceding paragraphs decided in the it follows the case be must reversed and remanded order that appellants may given opportunity right be an their to exercise redemption. present We determine from record cannot required pay. they fact, which should be In the trial amount to go formulating its all in court did into that branch of the case at conclusion. unnecessary be go for retrial it will case is to back
Since the assignments which are directed many appellants’ consider cause if and when the disappear will These procedural errors. at two matters again. one or But are there tried complain because appellants covered. The must withdraw intervening petition, an Spencer file permitted court they can consider how cannot understand We and later refile it. it his interven- withdrew Spencer this. When aggrieved themselves they keep him wanted they objected and declared petition ing they intervening petition and his refiled Spencer Then in court. petition plaintiff’s should answer to amended agreed their Certainly if intervening petition. to the as an answer treated case all this allowing Spencer to intervene error in there it. waived intervening and answer petition by the are raised many issues But ask an aceount appellants this case. The be tried in which cannot going July 1, this from profits ing rents which foreclosure date of practically to the back no cited Appellants have 1924. June occurred Spencer When seeking relief. such justify them which authorities legal which acquired the sale he the foreclosure purchased at have maintained could possession, and he right to with it the carried W. l. c. 124 S. c. 330, 225 Mo. l. Lee, supra, ejectment. [Feller appellants until void, voidable, The sale 1132.] they had by bringing this suit so do offered to redeem elected property. from profits to the rents and claim no Spencer
Neither can the intervener as and warrantor a covenantor c^la^n^ ^le a counterclaim or cross-action set HP against Bigham $500 for the return of the real estate damages depreciated price commission and for for according selling property, at he was tricked into his personal contention. These claims his. are quiet-title The case started as a suit. The out defendants filed claiming an answer redemption. Spencer filed in- an tervening petition asserting was bound the covenants war- ranty respondent in his deed to the IToffman and therefore entitled party. why, in to we come the case But cannot see under this engraft guise, permitted he should be another onto lawsuit controversy having object recovery money judgment its of a damages. appellants fact in effect consented to the petition intervening by protesting filing of the when it was with- drawn, answering joining thereto issue on the merits refiled, trying separate no it ivas warrant for two after cases equity though p. be an suit. C. J. sec. one, Whether [21 148.] damages Bigham question is entitled to from is a or not issue, wise main which is whether no related to the simple simply title, legal the fee whether he has Hoffman has *13 redemption appellants. still vested with a judgment given decree are For the reasons reversed and proceedings further the cause remanded inconsistent here- Beddon, Lindsay C:G., concur. with. foregoing opinion by Ellison, C., adopted
PER CURIAM:—The judges All opinion the court. concur. Ap H. Company, William Railroad Pacific Ensler v. Missouri (2d) 1034. pellant. S. W. February One, 3, 1930. Division