176 Mo. App. 397 | Mo. Ct. App. | 1913
This case is here upon second appeal. The decision of this court in the cause upon the former appeal will be found reported in 158 Mo. App. 636, 138 S. W. 944, to which reference is made for a more complete statement of facts than is here made.
On or about October 18, 1907, the plaintiffs in this action, William P. Kessler and his wife (appellants here) took title to certain lands in Lincoln county by warranty deed from one Naxera and one Knight and
At the time of this purchase, appellant Kessler was a director and president of the defendant, Prairie Slough Fishing & Hunting Club, a corporation organized under the provisions of what is now article 10, chapter 33, Revised Statutes 1909, and the latter, in February, 1909, instituted an action in equity against appellants upon the theory that they acted for the corporation in purchasing the land, charging that they perpetrated a fraud upon the corporation in taking title thereto in their own names. In that action, viz., Prairie Slough Fishing & Hunting Club v. Kessler et al., the lower court entered a decree vesting the title to the land in the corporation, upon compliance by it with certain conditions named in the decree. From this, judgment of the circuit court divesting them of title, the defendant in that case (plaintiffs . in this) appealed to the Supreme Court, where in a decision recently rendered by that court, as yet unreported, the judgment of the trial court was reversed upon the ground that the corporation was without power to take and hold title to the property in question. Pending the appeal in that case, however, this action was instituted in equity by the appellants to restraiu a sale of the property in question about to be had un
After the cause had been remanded by this court, the plaintiffs filed an amended reply, praying to be allowed to pay into court, for the use of defendant Karbe, the amount of the principal note and interest thereon, and to be subrogated to the rights of defendant Karbe in and to the notes and to all of his right, title and interest in and ,to said lands under and by virtue of the deed of trust. Thereafter said amended reply on motion of defendant Karbe was stricken from the files, and on November 18-, 1911, the court again entered judgment for defendant Karbe, decreeing that he “have judgment upon the notes in evidence for the sum of six thousand nine hundred ninety-three dollars ; with six per cent interest per annum on six thousand dollars of this judgment and eight per cent in
Prom this judgment the plaintiffs have prosecuted their appeal to this court.
But little now remains in the case. By the decision of the Supreme Court, above referred to, the title to the land “remains in these appellants, subject to the lien of the deed of trust held by respondent Karbe. The latter is entitled to a judgment of foreclosure and to have the land sold to satisfy the debt and interest, subject to the right of appellants to pay off the same at any time prior to a sale together with any expenses incurred in proceeding to make such sale. All questions relating to the rights of the corporation with respect to the land have disappeared.
It was error to allow interest on the semiannual interest notes. Section 7185, Revised Statutes 1909, provides: “Parties may contract, in writing, for the payment of interest upon interest, but the interest shall not be compounded oftener than once a year.” [See, also, Western Storage & Warehouse Co. v. Glasner, 169 Mo. 38, 68 S. W. 917; Citizens Nat’l Bank v. Donnell, 172 Mo. 384, 72 S. W. 925.] Here the interest to accrue on the indebtedness was represented by the interest notes, and to permit each semi
One further question affecting tbe form of tbe •decree to be now entered should be touched upon. In Prairie Slough Pishing & Hunting Club et al., above referred to, tbe decree of the trial court in favor of tbe corporation required tbe latter to cause tbe notes to be taken up and tbe makers thereof, these appellants, to be relieved from personal liability thereon-. In compliance with tbe decree officers of tbe corporation took up tbe notes, they being endorsed by tbe payees without recourse, and tbe corporation executed tbe following endorsement upon each note, viz.:
“In accordance with tbe judgment and order of tbe circuit court of Lincoln County, Mo., tbe makers of tbis note Wm. Pi Kessler and Lena Kessler are hereby released from all personal liability on tbis note. ’ ’
The reversal of- that decree, however, by tbe Supreme Court, annulled it and likewise that which tbe lower court required to be done to comply with it;
- The judgment of the circuit court will therefore be reversed and the cause remanded, with directions to find and determine the amount of the debt against the land to the date of the judgment of foreclosure by adding to the amount of the six-thousand-dollar principal note, simple interest at the rate of six per cent per annum on the amount thereof, from April 18, 1909, and then decree a foreclosure of the equity of redemption of appellants in the property; providing for the right of appellants to redeem at any time before the sale takes place by paying the amount of the debt and interest, together with such expenses, if any, as shall have been incurred in proceeding to sell the property; decreeing that the proceeds realized from a sale of the property be applied, first to the payments of the costs and expenses of making the sale, second to the payment of the debt and interest, and that the surplus, if any, be paid over to appellants, and that in the event that sufficient be not realized from such sale to pay the debt, interest and costs and expenses of making the sale, the defendant Karbe have judgment against the appellants for any deficiency thus remaining. It is so ordered.
ON MOTION TO MODIFY JUDGMENT.
It having been made to appear, on motion to modify the foregoing judgment, that a motion for rehearing is pending in the Supreme Court in the case of Prairie Slough Fishing & Hunting Club et al. v. Kessler et al., which motion remains undisposed of, the above judgment is modified to this extent : That, in the event the lower court shall enter its