31 Mo. App. 474 | Mo. Ct. App. | 1888
I. After condition broken the defendant became entitled to the possession of the mortgaged property, as he was jhen the legal owner. Until
II. It would seem to follow as a necessary corollary from these postulates, that where the mortgage covers several parcels of property, and the mortgagee proceeds to foreclose and sell, by selling each parcel separately, the moment he has realized enough to satisfy the debt- and charges he should stop the sale; and his title to the residue of the mortgaged property is then extinguished.. He then becomes a trustee of the remaining property for the benefit of- the mortgageor ; and his-refusal to surrender to the mortgageor the property, not necessary to be sold to make the debt, is tortious, and would invite the action of replevin or trover, according to the fact. Charter v. Stevens, 3 Denio, 33; Jones Chat. Mort., sec. 798.
III. Giving the defendant the benefit of every reasonable doubt arising on the proofs, the aggregate amount of principal and interest due on the note at the time of the sale was not over $126.80. The horses were first sold, and brought one hundred and thirty dollars. This was $3.20 more than the amount of the debt. This, therefore, released the cow from the operation of the mortgage; and she then being in the possession of the mortgageor, nothing remained to be done to restore his legal title. The defendant, in order to escape the legal effect of this state of facts, contends, first, that he was entitled to have deducted from the one hundred and thirty dollars the expense of such sale. There was, however, no evidence of any expense attending the sale.
He now insists further, that he is entitled to have his commission of two per cent, for selling the property, as provided in section 3318, Revised Statutes. Waiving any discussion of the question, as to whether this statute has any application to the instance of a mortgagee,, under a chattel mortgage with power of sale, who conducts his own sale for his own benefit, what has just been said respecting the matter of other expense, is equally applicable to this. And, furthermore, if the commission of two per cent, were allowed him, it would amount to only $2.60, still leaving in his hands $1.20 after satisfying the mortgage.
IY. Though not clearly expressed, and little urged at this bar, an instruction, asked by defendant and refused by the court, suggests the idea that, after the foreclosure sale there was an agreement between the parties, by which the defendant consented that plaintiff
Without reviewing the evidence in detail, which, properly understood, does not sustain defendant’s contention, the fact that defendant, as soon as this action was brought in the justice’s court, disposed of the horses at private sale as his absolute property, without any further foreclosure sale, shows conclusively that he did not regal’d the first sale as abandoned, and the foreclosure reopened. He must accept the logical result <*>f his own action, which in this case speaks louder than words. • ■
On the merits the verdict and judgment were for the right party, and in our opinion should not be disturbed.
the judgment is affirmed.