116 Mo. App. 123 | Mo. Ct. App. | 1906
This action was instituted on a certain statutory redemption bond executed by defendants to the plaintiff. The trial court gave what amounted to a peremptory instruction to' find for plaintiff in the sum of five hundred and fifty dollars, and the defendants come here for relief from the judgment rendered on the verdict thus directed.
The bond was executed under the provision of secs. 7079 and 7080, Revised Statutes 1889 (now secs. 4343 and 4344, Revised Statutes 1899), whereby a
It further appears that thereafter defendant’s bill in equity was dismissed and the injunction dissolved on February 18, 1899, and that on April 24, 1899, plaintiff filed his motion to assess damages on the injunction bond on account of loss of rent of the property “after the 15th day of December, 1897.” On this motion, the court assessed the sum of four hundred and fifty dollars against this defendant and his sureties.
Without the aid of the statute, the debtor may redeem his property at any time after default and before foreclosure by sale, but not afterwards. The statute merely extends the right to redeem after the sale for a period of one year, if the debtor will give bond securing the interest of that year and payment of any damages or waste. It is well understood law that a mortgagee or trustee in a deed of trust, after default by the debtor, is entitled to the possession of the property and he may, without foreclosure, maintain ejectment for it, if he wants possession, or he may take possession peaceably. [Johnson v. Houston, 47 Mo. 227; Reddick v. Gressman, 49 Mo. 389; Dickerson v. Bridges, 147 Mo. 235, 244.] He may thus satisfy his debts from the rents and profits of the estate. He can be made to account for the rents and profits toward the liquidation of the debt, and when satisfied, the mortgage or deed of trust is of no1 further force. The statute in question, being a mere extension of time for redemption,
We recognize the law as stated by the Supreme Court in Life Ins. Co. v. Rogers, 155 Mo. 312, and Sheridan v. Nation, 159 Mo. 27, that the debtor should have a reasonable time in which to give his bond of redemption and the impropriety of the creditor seeking to obtain possession of the property without the debtor’s consent while the bond is being secured. But, if the creditor does go into possession and thereby secures the profits of the estate, he does not thereby nullify the bond. Though, if such possession was taken without the consent and against the will of the debtor, he, doubtless, could assert the remedy, which is given by the statute, of forcible entry and detainer. But, in this case, no effort of that kind was made.
But a point is made by defendant, which goes to the whole of the case as presented in the record. When defendant brought the bill in equity, herein referred to,
It is no answer to this position to say that the plaintiff did not include the year of redemption in his motion for an assessment of damages on the injunction bond. It appears that he did not, but the reason, if there was one, does not appear. At any rate, that fact does not affect the view we have stated. It could not have affected the question of plaintiff’s repudiation of the bond for the reason that it occurred after the trial of the main cause.
The peremptory instruction offered by defendant should have been given. The judgment is reversed.