235 Mo. 522 | Mo. | 1911
— The plaintiff’s complaint is set out in his petition in four separate counts, and in two suits which were consolidated. The trouble grows out of the purchase of 100 acres of land in Howell county by plaintiff of defendant, and the alleged failure of defendant to make good the title to 58 acres. The purchase price of the land was $1,800, whereof the plaintiff paid $600 cash, and executed his two notes for $600 each for the balance, secured by deed of trust on the land purchased. The petition in plaintiff’s first suit is in three counts; in the first, after alleging defect in title to the 58 acres, which defect consisted in an unsatisfied deed of trust executed by one Blanchard, a former owner, for $225, it is alleged that plaintiff had an opportunity to sell the 100 acres at an advance of $1,200 over his purchase price, but on discovery of the failure of title the prospective purchaser declined to buy, and thereby the plaintiff lost $1,200, for which he asks judgment. The second count was the same as the first in statements of facts, except the alleged lost opportunity to sell is not mentioned and the prayer for judgment is that the defendant be required to pay off and satisfy the alleged $225 deed of trust. The third count complains that after making the purchase, when the plaintiff was ready to take possession, he found a tenant of defendant’s in possession, who would not surrender
In the first and second counts plaintiff alleged that it. was a part of the contract of purchase that defendant would furnish plaintiff an abstract of title and when plaintiff delivered his deed of trust to defendant securing the two $600 notes, defendant presented an abstract of title, but would not allow plaintiff to retain it so as to examine it or have it examined, hence plaintiff was fraudulently prevented from discovering the defect in the title.
Defendant’s answer in effect was a general denial.
While that suit was pending, plaintiff filed another suit against this defendant and the trustee in the deed of trust given by plaintiff, in which plaintiff alleged that after service of process in the first suit, defendant caused the trustee to advertise the property for sale, to foreclose the deed of trust, alleging that they had secretly conspired to do so, and plaintiff had just discovered the advertisement. Plaintiff prayed an injunction to prevent the sale. On the filing of that suit the injunction issued.
The answer of the defendants admitted that they had advertised the property for sale to foreclose the deed of trust, but denied all other allegations.
Afterwards plaintiff filed an amended petition in the second ease in which he reiterated the charges of fraud against the defendant Banking Company in-withholding the abstract of title from him, and averred that he had already paid the defendant the full value of all the land of which he received good title and then-offered to quit-claim to defendant that part of the land to which the title was defective and prayed that the two $600 notes given by him be surrendered and cancelled and the injunction be made perpetual. The defendant, the Banking Company, filed a motion to strike out the amended petition, which was overruled, and then filed a motion to dissolve the injunction, which was also
Before the trial the two suits were consolidated to be tried as one.
In the Blanchard deed of trust for $225, which it is alleged constitutes the defect in the title which defendant conveyed to plaintiff, it was specified that if the maker of the note should refuse or neglect to pay it when it became due the trustee therein named or in case of his absence, death, refusal to act, or disability in anywise the (then) acting sheriff of Howell county, at the request of the legal holder of the note, may proceed to sell, etc., to foreclose the deed of trust. The trustee died and the deed of trust was. foreclosed by sale of the land by C. E. Kimberlin, then sheriff of Howell county, and at that sale the property was bought in by T. H. Diggs and W. H. Garanflo, who were at that time the legal holders of the note secured by the deed of trust; their bid was $400, which the deed recites they paid. Kimberlin was sheriff of Howell county when he made the sale, but he was not sheriff at' the date of the death of the trustee named in the deed. The trustee died December 5, 1900, and at that time the note was past due and unpaid, and J. C. Thomas was sheriff of the county. The decision of the cause seems to have turned on that point, the court finding that because Kimberlin was not sheriff when the trustee died his attémpted foreclosure was invalid, and therefore the deed of trust remained unsatisfied and the defendant’s title to the 58 acres was incomplete.
When the consolidated cases came on for trial the first and third counts in the petition in the first suit were ignored, there was no finding or judgment in reference to either of them, and only incidentally was there any adjudication as to the second count. There was no evidence relating to either of those three counts
I. Respondent insists that there is no bill of exceptions in the record which can be considered in this court. The facts in reference to that matter are these: The trial began at the July term, 1907, and all the evidence set out in the bill of exceptions was introduced at that term, and the interlocutory decree was rendered then, on August 6, 1907. Defendant seeming to treat the interlocutory decree as a judgment from which an appeal would lie, filed a motion for a new trial, which the court overruled, then filed an affidavit for an appeal, which was allowed, and on the same day, August 6th, defendant was granted ninety days in which to file its bill of exceptions; afterwards in vacation, October 28th, the judge extended the time sixty days from the time theretofore granted, which would extend to January 3, 1908. On the first day of the December term, 1907, the defendant, seeming to realize that his appeal was premature, came into court and
It is possible the court did not understand the extension given January 3d as a second extension of the time given at-the July term, but the language is sufficient to give that effect, and we must so consider it. We hold that the bill of exceptions was filed in due time.
II. There is really very little, if any, dispute as to the facts. There is nothing in the evidence to justify the charge of fraud, and the court did not find that there was any fraud. The only point on which the case turned in the mind of the learned trial judge was the supposed invalidity of the sale by Sheriff Kimberhn, and on that point he was guided by what this court said in McNutt v. Ins. Co., 181 Mo. 94. But since the decision in that case, this court, in Feller v. Lee, 225 Mo. 319, has modified, if not overruled the McNutt
III. There is another point in this case which is decisive of its merits: Digges and Garanflo held the title to this land, held it as we have already said for the Bank, they executed a warranty deed to the plaintiff for the whole tract, including the 58 acres on which was the Blanchard deed of trust, they also held the $225 note secured by that deed of trust; it was at their request that Sheriff Kimberlin undertook to execute the deed and sell the land; the deed recites that it was done at the request of the legal holder of the note; they were present at the sale, bought the land and took the sheriff’s deed. Under those circumstances neither they nor any one else could ever assert any validity either in the note or deed of trust securing it. The note could not be assigned as to an innocent indorsee, because it is long past due.
We hold that the sale by Sheriff Kimberlin was a foreclosure and satisfaction of the Blanchard deed of trust and that the title acquired by Digges and Garanflo inured to the plaintiff by virtue of their warranty deed to him.
The j udgment is reversed, and the cause remanded to the circuit court with directions to enter a decree dissolving the injunction and rendering judgment for the defendant Banking Company on all the counts in plaintiff’s two suits, and that the injunction suit be dismissed as to defendants Catron and Miller.