*1 meaning and we so held. other than its technical sense language- ease, used pointed out, Further’ it was that manifested a clear vest at the death intent remainder heirs, given, whom the that the remainder testator “ ” legal strict, meaning, were de- being in its word heirs construed terminable of that time. correctly opinion the trial court construed the
''We are of the judgment be affirmed. It and that its should will herein involved Hyde Bradley, concur. 'CC., so ordered. C., is foregoing opinion PER CURIAM: The Ferguson, judges All concur. adopted opinion'of the court. as the City Life Appellant, v. Kansas Com Insurance Peterson, Norine (2d) 770. Corporation. S. W. pany, One, 1936. Division November *2 Quinn Beery Johnson, Prince <& <& for appellant. Garnett Frank W. McAllister, Stanley Broaddus, James W. Bassett L. B. Williams for respondent.
HYDE, damages C. This is an action at law conveying estate in trust, a certain real deed of $30,000 city Independence note for payment of a secure (reduced by Plaintiff had $24,000), made and defendant. held damages. a verdict $46,000 damages $20,000 punitive actual Thereafter, puni- trial all plaintiff court ordered remit of the to: damages tive Plain- $7500. and all of the actual in-excess tiff refused-to file a remittitur and court defendant’s sustained grant- motion for new trial. appealed a Plaintiff has from this order ing that, regardless a defendant new trial. Defendant contends as- whether trial order can be on court’s sustained it signed, proper plaintiff was because maintain entitled to damages. an If action at law for contention can sustained be unnecessary grounds urged. will other be to consider.' constructed, Independence, her brick plaintiff on land in garage building -Building. office Liberty which she called the $30,000 gave At that' time she from defendant and- as se borrowed- curity Liberty Building. provided a first trust The note deed on payments principal for semi-annual on .the and all of these which 1931) prior (November 23, were to the of foreclosure .had due date by paid (they years pay paid $5000 bеen were three in advance' reducing Plain 1928), principal $24,000. ment in balance due to n tiff, pay installments of interest however, failed the semi-annual - -'8th); totaling (January July taxes about due in' 1931 8th and delinquent; paid $234 premium $1300 were and an insurance things All of keep property insured. these con defendant1 to gave under the covenants of trust deed which- de stituted defaults' building right Plaintiff had sold- the fendant foreclose. mortgage part-of pur
1-928 it for had carried a second purchaser payments .to chase This had failed -to make price. mortgage required plaintiff foreclosed which second early completed in 1931. Apparently it. this foreclosure question *4 not now deny and does Plaintiff does these defaults when it did to sell-the right to commence foreclosure defendant’s in day pleadings The are summarized property the advertised. - brief, as follows: n wrongfully con was petition alleges that the sale' “Plaintiff’s p. in day the fixed the advertisement three o’clock m. on ducted about holding customary time for such sales of and sale, and that usual p. where M.; Independence, at was the courthouse at two o’clock that of held, doors, the advertisement was has four front while sale door, occur at the ‘front’ recited the sale would the sale fur petition The specifying the door intended. particular without result, uncertainty as the exact of the alleges that as the ther pretended which the sale sale, and'the time at place unusual of the except defendant, who in was no attendance occurred, bidder grossly inadequate for the con acquired property wrongfully that, prop at the-time of $18-,000.00, and sale sideration $64,-000.00. alleged It is also- erty value reasonable was of the plaintiff was, by wrongful subjected sale, grossly inadequate and to liability for a deficiency $6,000.00 which the of about on the note mortgage secured; wrongful in fraudulent, and sale was tentional. prayer The petition $46;,000.00 of the for actual and is $25,000.00 punitive damages. mortgage The answer admits the and the foreclosure, allegations pe generally denies of the the other tition.” theory The tried, plain- which the stated in ease thus reply tiff’s brief: “The tried, case was not by party, theory either on the of fraud. action, theory parties belciw, was the both in trial for for a wrongful foreclosure which because of the form of the notice and the was con- lateness of hour which the sаle ducted, resulting bidding.” in (We a sale take competitive without it that prior means to make no claim a fraudulent intent part defendant, on the proceed but that it was act to notice.) alleged with the sale at o’clock, three under the defective favorably plaintiff’s standpoint, The evidence from considered most purpose ruling question for the of whether defendant’s de- sustained, murrer to the evidence should have been tends to show the day concerning hеreinafter of sale facts stated the events of the just trustee, prior thereto. named Because of the death of the County by advertisement and sale' was made the sheriff of Jackson as substitute trustee. The sheriff had nine foreclosures advertised Eight for November 23rd. sales be at the courthouse of these were to City one, questioned here, this the courthouse Kansas two Independence. time for at each courthouse was The usual sales making the sales the afternoon. sheriff commenced o’clock City As as he finished at that hour at the Kansas courthouse. soon shortly Independence, arriving there before sales, he came to those by this five minutes after three. three o’clock and commenced by attorney. an her brother and represented Plaintiff was at the stating 18th, on November attorney had written defendant Her involved, property accord- “purposes redeeming that his client if to the holder of law, such sаle be made provisions of ing to the by person of trust or to other for deed said the debt secured the notice intention to redeem Her brother served holder.” such to the sale. prior sheriff on the attorney, an represented at the sale who bid Defendant $18,000. brother said that he saw Plaintiff’s building waiting building, the sheriff to come from attorney at the this sale.” “objected to the He did not state *5 that City, and Kansas attorney why he told the objected or whether he grounds what entering courthouse had four doors Independence objected. outside, one on each side thereof. usual from the courthouse place bolding of been sales at tbe east Some bad door. sales beld at tbe ever any south door. that bad There was evidence been beld at either tbe sale tbe west or north made doors. Tbe sheriff plaintiff’s building of at tbe door went to tbe south east and then door it attorney and resold there. Defendant’s made same bid at tbe plаces both place-. be was who a bid at either and tbe one made provided “may proceed Tbe deed to sell tbe trust that the trustee property described, every thereof, any part hereinbefore and and at public vendue, highest . to tbe bidder at . front door of tbe . County County Jackson, Independence, House at in tbe Court Missouri, twenty cash, giving days public State of first notice of time, terms, place space tbe This blank for a more and of sale.” designаtion Tbe particular of a door was left blank. trustee’s notice place Monday, to No- of sale stated tbe time and be “on p. 23, 1931, 5:00 M. at tbe vember between tbe hours 9:00 a. m. and Independence, County front door of tbe House at Jackson Court County, Missouri.” were tbe from produced Plaintiff three at courthouse witnesses who p. M. two Two waited two-thirty
about o’clock until about of these them bad at One of tbe east door. Both were' real estate dealers. exсhange or tbe attempting been make a to sell deal able do so. building early spring since but bad not been tbe get when building Tbe be tried loan on the other said that bad wanting know to tbe extent it was built and “was interested buyer, just or brought . as a more what it . . wasn’t there tbe south door spectator.” witness be was at less Another said twenty two; that be came stayed minutes after o’clock until two there; anybody and that be tbe did not see around courthouse and He that thought maybe they it off. said bаd called left because be bargains. looking for bought real estate and was be and sold None property. for the- say be would have bid He what did have made a they anyone else would testified that tbe witnesses higher bid. defendant’s bid than of tbe sale there that at tbe time evidence further was Plaintiff’s exchange, for sale or “absolutely property, either no market for Plaintiff’s get any money, loans.” evidence
and no chance lot) than building cost more (including tbe tbe аlso showed time, who it tbe man was valued at $70,000 $64,200; and that it bad an loan, at for defendant’s appraised application for. $6600. annual Plaintiff’s tbe income of gross rental $73,250, property set out tbe It tbe valued in evidence. loan was , building, names, stated tbe of tbe construction, location size, 1931, part building tenant. business, rentals of each insolvency company automobile of tbe part to tbe vacant, due However, even at time of portion of it. tbe occupiеd a bad which *6 706' application the all building of the gross was not rented and the rental was, part, income estimated stating unoccupied the amount the by
portions -they “-should- rent^foiv” '’It was not shown that ever did. ruling Our is that defendant’s contention must be sustained. The fatal plaintiff defect in that-, is -case is- .while she seeks to recover damages theory on the equity redemption that she lost her in the by wrongful land a by mortgagee, foreclosure the proof her shows right that defendant had a to foreclose under- the terms of trust the deed because of her. A mortgagee.’s defaults. of commencing act a wrongful right foreclosure cannot- be when there is a clear to fore 1 d Haywar Savings close. Farms Co. v. Union Bank & Trust [See (Minm); Co. 260 The most-that-plaintiff’s evidence N. W. 868.] by wrongful tends show is not a mortgagee, foreclosure' but only an improper rightful execution a foreclosure. The cases of Syndicate 679, Missouri Real Estate 179 78 Sims, v. Mo. S. W. 1006, App. Rogers 121 Mo. 98 156, 783,W. S. (Mass.), v. Barnes 47 602, 145, N. E. 38 A. L. R. which are relies true eases wrongful by mortgagee: Syn foreclosure In Real Estate ease, mortgagee right dicate ha’d no to- foreclose because' he had agreement. Rogers made a valid extension case, mortgagee right had no to'-foreclosure because default. The case Stansberry (Mo. App.), by v. McDowell 186 757, S. W. also cited plaintiff, wrongful was not a foreclosure, true case of because obligation recognized; secured had maturеd as the court there .-but there the cause conspiracy- of action was based on a fraudulent accomplish conceal-the note and foreclosure knowl without edge, plaintiff’s-active efforts, face of defendants, made known to' right prevent paying .by find note foreclosure it. The. based--on-wrongful recover there was neither foreclosure nor improper execution a foreclosure but acts of active fraud which caused damаge. Saxton, It has no this case. resemblance to Sherwood 78, against a releasing 63 wrongfully Mo. was an action trustee for responsible purchased bidders a proper, sale, who had at selling money. course, and then a this second sale less Of mortgagor caused a loss to the there was a definite basis for computing damages.' liability his trustee for own a his [For 571, p. 1035, J. 605, conduct see C. sec. sec. mortgagee C. L. There also where a has R. are cases sec. 408.] mоrtgaged property power authorizing a of sale him sold the under making mortgagee in In such cases the such personally. to do so responsibilities a trustee a trust a sale has the same'duties-and .governed liability by.the His situation-is mortgagee. deed applicable "to trustees and principles as those such- cases are same here. point not in holds'that, .least-in cites no case'which the absence
Plaintiff carry purpose, out a plan fraudulent a merе preconceived of improper rightful execution of a any relief foreclosure is by mortgagor against mortgagee equity. except We have every for such cases contrary, searched found On have none. sustaining case, examined, such have recovery we at law for against mortgagor mortgagee, in which has been case *7 absolutely mortgagee the foreclosure was. had void because the right attempted foreclose at foreclosure. Ames the time [See Higdon (N. S.) (sale v. 69 (Eng.), Rep. T. 292 L. void because no default) ; (sale (Ga.), 57 v. because Crawford S. E. 792 void Garrett full); Taylor 89 paid (Ky.), debt been in Aultman & v. had Meade statute); Cullen, W. (sale by Reilly S. 137 void forbidden because v. 32, (sale 74 at private 101 S. 370 sale App. Mo. W. void because sold not authorized) ; private Guay was Build when v. Brotherhood e ing (N. H.), (sale maturity 168 900 Assn. Atl. becaus before void debt); (N. & Supply Co. C.), 104 S. Burnett v. Comm. of Dunn full); 137 in (sale paid E. void debt had been Warren v. because (N. C.), authority); 84 (sale vоid Susman S. E. 760 without because Long (S. (sale 579 had C.), v. Hunter 36 S. E. void because debt full); 472; 93 W. paid (Tex.), Id., been in Ullman v. Devereux S. 102 authority); Mosby’s (sale S. W. 1163 void without v. because Exr. (Va.), (sale Admr. 10 E. 425 void au Johnson’s S. because without thority) ; also, 997, 3 19 R. C. L. see, Mortgages, see. Jones on , 1036, 616, 432 ; 894, 1119-1199, 41 p. C. J. secs. sec. sec. 1501.] limited, of Supreme The Court of Massachusetts so decision Rogers, original opinion itself, supra, Barnes not in the v. but Green, 404, subsequent in v. 287 also recent cases. Sandler Mass. directed, rightly for 39, 192 N. E. the court held that a verdict was damages wrongful- defendant, was for for. fore who- law sued at after offering to foreclosed, accept had closure. Defendant certain (which tendered), plaintiff for all delinquencies amount was when imposed accept thereafter. refused new conditions -The c.o-urt-said: of The power. terms by “The defendant was within the itself, previous nor at unaccepted breach -not, tender did of cure the delay right mortgagee to of the execute .the extinguish lаw or ,. parties . . did negotiations . . The between the power. . - performance extending for the of -the time effect of not' have . . , is already The case breach occurred. . had condition. 179 where there-was no breach Barnes, 169 Rogers v. unlike Mass. condition.”- of 194 (Mass.), 289, E. Bank v. Cronin N. Cambridge Savings (cid:127)In sought deficiency foreclosure and defendant after for the plaintiff sued damages the amount obtained on the recoupment for unduly'low plaintiff’s because of misconduct. The was the sale misconduct, recognizing but while was-no found court tort, said: “An action of and a Barnes, supra, Rogers v. rule 708
proceeding to set aside the and incon- foreclosure are alternative . . sistent remedies. . was Where the based foreclosure an actual was form, lawful but was default foreclosure negligently conducted bad of the mort- the detriment faith gagor, it has never been tort decided that am will lie.” action of Peoples’ 846, Freedman v. Bank (Mass.), National E. was N. also at law a suit Plaintiff’s foreclosure. mortgage theory acceptance was that had debt satisfied been properly other notes. court that the directed held verdict defendant, saying: proof “The burden on the mortgage to show that there was no breach condition of aspect prevail the time in order this of the testimony That not case. burden has been sustained. The behalf paid. explicit has been the defendant the effect thаt it not jury obliged testimony, not to believe that "While does proof in the There supply defect case. Rogers Barnes, L. R. nothing 602, 169 Mass. N. E. A. italics.) (Our with what 145, at variance is here decided.” [See *8 Hazelton, 412, Allen, Mass. 12 also the Randall v. 94 earlier case of 412.] Massachusetts, Silk, v. in Sandler There is a still more recent case damages resulting recovery N. E. a which sustained Stansberry perhaps more like from a foreclosure. It to be v. seems (fraudulent conspiracy plain McDowell, supra to foreclose without (foreclosure Rogers v. than like Barnes -without knowledge), tiff’s mortgage right), it is noted the foreclosed was without but to be given consideration, any note, apparently and not secure was did Anyhow, the consummation the fraudu purpose. fraudulent of some (a subsequent lien) deprived security plaintiff of attachment plan lent It clear that the Massachusetts authorities do purpose. as its was in right this case. not to recover sustain good why are the authorities thus found in There are reasons right mortgagee foreclose, the has the to the complete accord. When improper legal An passes sale the title. execution of foreclosure equity for a court may be sufficient of to- power sale the of legal stands aside, is set it as a valid until it aside. But set the sale mortgagor ought to barred be from the title and the transfer long the as damages law because of transaction as he at claiming сonveyance his title. For him legal a to as it to stand permits it, bring law, at because of is in an action the stand and to allow it validity. may its a Such be attack collateral a nature in If to challenge law. desires it is not void equity but he in voidable void), not he should attack it voidable validity (when it is but its equity. by in when suit But do that he can directly and right exists, to sell then such because itself wholly mortgagee a sale is and tbe acquire void can ho title it. under haye mortgagor go has right equity to into it set asidе. be a It would cloud title on his also be a it would means might which he lose his an purchaser, title to innocent he because estopped by be rights. situation, could laches to assert his however, mortgagor let stand, can and sue law for at damages, right collaterally By because he has the attack it. su judgment ing to obtain be paid value, at law to does its not admit validity its but he be estopped equity. would thereafter attack Ito ¡an especially appropriate remedy at law is Such suit for purchaser gives buys foreclosure, an innocent where because it re against guilty party. lief rather than innocent was the That Rogers Barnes, supra. situation why plaintiff
There is another reason not to re entitled showing plaintiff cover on her is, in this ease: failed That because ¡on equity prove redemption that her any value had the date That was the sale. an element essential relief either law or (cid:127)equity, right day because had dеfendant foreclose set mortgagor have, the most that could' be entitled would plaintiff’s- property what the worth then. wit be Not one of sale, who came to would bid as nesses attend said that he have property says' as much for defendant bid. Plaintiff way market, and, to show market was no was no because there value therefore, jury fix entitled to1 reasonable value. plaintiff’s only as to with this is that evidence reasonable
trouble completed building newly value was tо reasonable- value might 1927. That be considered evidence of its substantial by showing up if have connected' it that values value could changed attempt not during that time. Plaintiff did to make had , showing, from' facts, know events dur and We such trends judicial knowledge, take times, which we that she ing must those *9 showing. said This court has that: “There make such a could ignorant pretend be more why should to than the courts no reason is proceed mankind,” ought not to that “courts on the rest every know.” what onе else does they not know theory do [State 500, 111 S. Co., 658, 212 Mo. W. Ry. Since Pacific Missouri v. 504.] change real estate values did to a know that lower judicially we of 1931 absence of evidence total value con we cannot the level, is evidence substantial thereof. 1927 value plaintiff’s that sider is to there no evidence show the Moreover, this case that mislead actual bidders or the at as to that was so conducted have much as property would bid as anyone, who tеndance county sheriff of the made The prevented. sale as for, was sold Independence office He an courthouse had trustee. substitute anyone1 applied charge, where could have inf or- deputy with a 710 It was apparent
mation. that could Kansas be not make sales at City Independence and at at tbe time. There is evidence that same no plaintiff, brother, attorney requested either her him-not or her to sell any or made claim him improper to that was to- at the hour it sell’ designate of three o’clock or that the failure to the exact door in the anyone. any notice could mislead Neither is there evidence that they any postponement'to plaintiff’s stated such attor evidence', ney at or before the Plaintiff’s own was that sale. d,oor sales, sheriff made the sale at and that he cried the' usual sale- at both ever two doors where had been sales anyone, -no held. There is reason to believe from this record that buying, in' interested could-not have the sale. view of found who1, absence, proof anyone, complete would have bid that being for,, prevented or from property much as the1 sold misled showing present sale, plaintiff’s' to- be insufficient to seems granting equity. relief at law or in Judah warrant either [See 301, (2d) cited; 3 Pitts, 715, v. Mo. S. W. cases Jones 2395, 953, Mortgages, 911, p. 943, 2416; 41 sec. sec. C. J. sec. 1411; 19 1394, p. 964, R. L. Plaintiff’s brief sec. C. sec. 599, 414.] this, says:'‘‘How many notice, reading prospeсtive bidders indefinite bidding stayed away might theory they from be thé sale-on 'the that how subject -irregularity? impossible at a to determine to It is many with bidders affected.” trouble» prospective were- thus affected, plaintiff’s proof were' thus case that -there is that price it anyone desiring buy property at or that there- was to- speculation brought. judgment A based' the mere cannot be bidders, or, if conjecture might prospective and’ that there be such anyone were, irregularity affect who de an would there such- ’ bid, did persions, who- intend- to -bid. Proof" that did not sired to proof Neither not wait does does'not'make-.a case. showing that would have looking bargain,
a man for a without against defendant’s bid. competitor been a’ jury emphasized was that it theory to ease' One words, at all. In other to foreclose wrongful act for defendant was a in such bad times grant plaintiff' a moratorium refusal gave made which Default had been wrongful. made foreclоsure, remedy and it was right to exercise the defendant forbear. decide whether exercise for the defendant because -of critical conditions' la grant 'a moratorium power Building Corp. v. judicial power. and not legislative [Monticello 545; (2d) Lipscomb W. 330 Mo. S. Co., Inv. Monticello 465; 17, 39 S. Federal Land Mo. W. Co., 138 Life Ins. v. New York 252 N. W. First Union (Iowa), Bank State Wilmarth Bank Bank, 272 Ill. 487: App. Division State Savings Bank v. & Trust *10 . 398, Sup. 290 U. Blaisdell, S Loan Assn. Building & Home 231, 78 Ct. L. Ed. Joint Louisville Stock Land Bank v. Rad ford, 295 555, U. S. 55 Sup. 854, 79 see, also, Ct. L. Ed. 1593; 8 A. note L. R. Legislature own Our never bas seen fit 100.] grant a moratorium on real any estate foreclosures time since the conditions referred developed, to have refusal defendant’s grant one in case this cannot be basis either an action damages or punitive-damages therein. granting
The order new trial affirmed and the cause remand- Ferguson Bradley, CC., ed. concur.
PER foregoing opinion CURIAM: The by Hyde, C., adopted opinion as the All judges the court. concur. Appel Corporation, Company, Pandjiris Cadillac v. Oliver
Verda (2d) 969. W. S. lant. 98 One, 1936. November Division