82 Mo. 639 | Mo. | 1884
Respondent filed this bill in equity in the circuit court of Jackson county, Missouri, to set aside a certain sale and deed executed thereunder by appellant, Bailey, to his co-appellant, the First National Bank of Pleasant Hill, Missouri.
He alleges therein, in substance that he is the owner of the southeast quarter of the northeast quarter and the-northeast quarter of the southeast quarter of section 33,
Defendants filed answer to this petition, admitting the execution of the trust deed by respondent; also, the date and maturity of the bond and the rates of interest as given; also, that there are stipulations in the trust deed in substance as stated in the petition. That Bailey was sheriff as stated; that the Eirst National Bank is a corporation; that Bailey, by direction of said bank, sold said land under said trust deed and that said bank became the purchaser thereof. The answer then denies all other allegations in the petition. As a further defense it sets up that it was stipulated in said deed of trust in case of default in the payment of the bonds or coupons at the time, in the manner, and-^at the place specified, or in case of non-payment of taxes or neglect to procure or renew insurance on the property it should be lawful for the trustee or his successor on the application of the legal holder of said bond or coupons, * * to sell the property * * and to execute a deed of conveyance therefor and to apply the proceeds of sale first, to the payment of the expenses of advertising, selling and conveying said property, including also the sum of $50 for an attorney’s fee and second the amount then due on said bond and coupons and third, the residue to be paid to respondent ; that in default of any of the payments of principal or interest, or of a breach of any of the covenants or agreements contained in said deed of trust, the whole of the sum thereby secured, with interest to the time of sale, should become due and payable; and the premises in said trust deed described, might at once be sold in the same
That on January 12th, 1880, said Bunn, for value received, indorsed and delivered said bond to defendant, the Eirst National Bank, and said defendant thereby became the legal owner and holder thereof, and of the coupons attached thereto; that plaintiff failed to keep and perform tbe stipulations and covenants in said deed of trust contained, in that he failed and neglected to pay the interest •cotipon which became due on the 2d day of January, 1880. And failed and neglected to pay the taxes for the years 1878 and 1879, or either of said years, at the time they became due or any time thereafter, as required by the covenants in his said deed of trust; and failed to insure, or cause to be insured, said property as required; that by reason of ■the breaches of said covenants and agreements said bond, .and all interest then due, became due and payable, and it became and was lawful for defendant, said National Bank, .as the owner and holder of said bond and coupons, to cause said property to be sold; that said Bailey, pursuant to the terms and provisions of said deed of trust, did, on the 25th ■day of February, 1880, at the court house door in the city ■of Independence, sell at public vendue, to the highest and ■best bidder for cash, the said real estate, and that at said saje .and bank became the purchaser, at and for the price and sum ■of $560.50, and received a deed therefor; that the expenses .attending the sale and transfer of said real estate as aforesaid .amounted to $97.50, leaving a balance of $462.50, which was applied as a credit on said bond, as required by the terms of said deed of trust.
In reply to this answer, plaintiff states that at the time he made the loan mentioned in the petition, ¥m. H. Tintín, from whom he effected said loan, retained from the amount-borrowed by plaintiff, sufficient money to pay the insurance ■on the buildings erected on the premises, and agreed to have the same insured; that sometime in the fall of 1879
To this reply there was no demurrer or motion to-strike out.
There is little, if any, conflict about the material facts, which are in brief as follows: In 1877 respondent was the owner of two forty acre tracts of land in Jackson county, situated about five miles from Pleasant Ilill, Missouri; fifty acres of it were in cultivation and the balance was timber land, and was worth $20 per acre, or $1,600 in all. In December, 1877, he, through one ¥m. H. Bunn, of Warrens-burg, Missouri, borrowed $600, and to secure the payment of same executed deed of trust on the above described premises. The deed of trust was dated back to July 2nd, 1877, and interest charged and collected from that date, Phillips actually receiving only $507 of the $600, the $98 being retained for expenses, interest, commissions and for sufficient to iusure the dwelling house on the premises for five years. The interest on the $600 became due and payable semi-annually, viz: 2nd of July and January of each year; the principal became due and payable on the 2nd day of July, 1882. All the transactions were had with fm. II. Bunn, at "Warrensburg, who was actiug as the agent for his brother, T. J. Bunn, to whom the bond was made payable. His brother was making a good many loans of this kind in that section at that time, and he, ¥m. H. Bunn, did all the business and collected and forwarded the interest on them as they became due.
The taxes on the property in the deed of trust described, were not paid for the years 1878 and 1879 at the time they became due and payable. For each of said years-
The president of the bank testified “that he bought the bond about the middle of January, 1880; that he made inquiry for it and bought it; that he received it about the •date of its transfer to the bank, a few days thereafter; that he did not notify plaintiff he had bought it; that he did not make a demand on plaintiff for the January interest before he advertised the land for sale, and that he never asked plaintiff for any interest on said bond; that he sent it to the bank’s attorney at Independence, soon after he received it; that he did not buy it with the intention to foreclose it as soon as he bought; that it is the only bond of the kind the bank ever bought.” On the day of sale, and before sale, the respondent, by his attorney, E. P. Gates, tendered to the sheriff’ the interest due January 2nd, 1880,
Upon the trial defendant offered its president as a witness to show that plaintiff’s father was indebted to the First National Bank of Pleasant Hill; that he (plaintiff’s father) had promised to pay the debt out of the land in controversy in this cause, and had afterwards fraudulently conveyed the property to plaintiff” and plaintiff ’s brother;, that he, witness, and other officers of said bank believed that said conveyance to plaintiff and his brother was fraudulent and void as to creditors and proposed to take steps to-expose the fraud and subject the laud to the payment of the debt contracted by plaintiff’s father with the said bank. Which testimony the court excluded as irrelevant and incompetent. To the exclusion of which defendants at the time excepted. The court found the issues for the respondent and entered up a decree accordingly, and appellants, after unsuccessful motions to set aside the finding and for new trial, bring the cause here by appeal.
It will be seen, therefore, that the bank purchased the bond and coupons about the middle of January, 1880, advertised the property for sale January 24th and forced the same to sale February 25th. The sale was had under a deed of trust to secure a bond whose principal was not due until July, 1882. The tender made by respondent on the day of sale which included all interest due, costs of advertising, commissions, etc., was refused, because it did not,, also, include the principal of the bond and the attorney’s fee of $50. This tender should have been accepted by the sheriff who was acting in place of the trustee, and the sale stopped. The respondent had paid the interest promptly
The taxes, however, were all paid February 10th, 1880, and the January interest tendered as already said. It was provided in the trust deed that in the event of a breach of its covenants the whole of the principal and interest to the time of sale should at once become due and the property sold in like manner and effect as if the bond by its terms had matured. In the case of Whelan v. Reiley, 61 Mo. 565, the trust deed therein involved contained covenants similarly harsh and stringent to those before us. The difference attempted to he shown by appellant’s counsel between the two instruments, is we think, rather subtle and is not material and substantial. In that deed it was provided that, in case of default in the payment of any of the interest notes, etc., then the whole debt secured should become due and payable, etc. There was in that case a default in the payment of a portion of the interest notes when due
Nor do we think the respondent was bound to tender the sum of $50 as an attorney’s fee. It had not, under the provision of the trust deed itself, become due. It was to be paid out of the proceeds of the sale as a part of the expenses of such sale. It did not even become due by virtue of any default in any of said payments, or a breach of any of said covenants nor upon the mere advertisement of the property, but was a sum to be collected as a part of the expenses only when there was in fact a sale and conveyance of the property.
Nor do we think there was, under the pleadings and evidence, any such, breach of the covenant in the trust deed to procure and renew the insurance as should in equity declare the whole sum thereby due and justify a sale of the property. As we have already seen when the loan was made, ¥m. J. Bunn acting for his brother, Thos. J. Bunn, reserved and retained from the money borrowed a sum sufficient to pay the insurance for five years, the whole period of the loan, which he agreed so to apply, but which he neglected to do, as he himself testifies, and respondent did not know that the building was not insured until after it was destroyed by fire in October, 1879 ; of this there is no conflict in the testimony. This was one of the demands of the lender and was enforced and the amount deducted to-enhance the security by insurance on the house to the amount of $500. To the evidence in this behalf there was no objection at the trial. The policy was, also, upon request,
We, also, approve the court’s action in refusing to admit the testimony offered and the reasons assigned therefor by the court are satisfactory to us. The evidence was incompetent and irrelevant and had no material connection with the inquiry in progress before the court. As we find no error in the case we affirm the judgment.