On the sixth day of 'March, 1897, the plaintiff commenced a suit in the circuit court of the city of St. Louis for himself and all other holders of third mortgage bonds to foreclose what is known as the “third mortgage deed of trust,” executed by the People’s Railway Company to C. C. Maffitt, as trustee, to secure certain bonds of said company in said mortgage deed described. In his petition he alleged the incorporation of the People’s Railway Company under the laws of this State; that C. C. Maffitt was the trustee in said “third mortgage deed of trust;” that said mortgage was recorded in book 917, page 27, and following, in the office of the recorder of deeds of the city of St. Louis; that the People’s Railway Company was duly authorized to construct, maintain and operate a street railway in the city of St. Louis, and has constructed said railway, and was engaged in transporting passengers over its line commencing at the intersection of Morgan and Fourth streets, and running south on Fourth to Chouteau avenue west and southwest on
Plaintiff then alleged that in pursuance of said third mortgage deed the People’s Railway Company executed one thousand bonds, numbered from one to one thousand inclusive, aggregating $1,000,000, each bearing date July 10, 1889, payable fifteen years after date. Of this number eight hundred were sold and negotiated, and two hundred were never negotiated, but remain in the treasury; that of the eight hundred bonds so issued plaintiff is the lawful holder of three hundred and forty, aggregating $340,000. Plaintiff then assigns as breaches of the conditions of said mortgage, first, that the said railway has not paid the semiannual interest due July 10, 1896, and January 10, 1897, and that defendant had no funds to pay the interest due July 10, 1897; second, that said company has not paid the public taxes lawfully assessed against the property conveyed by said mortgage deed to the amount of $30,000; third, that it has not performed its covenant to take up and liquidate the. first and second mortgage bonds with the two hundred bonds remaining in the treasury, and the past interest on said bonds, amounting to $3,000, and that the floating debt of said company amounted to $240,000 for materials furnished,
A summons issued on the tenth day of March, 1897, and was duly served the next day on the company arid the trustee Maffitt. The court appointed Charles Green receiver upon the motion of plaintiff, and he gave bond as required. On April 12, 1897, leave was given certain parties to file an intervening petition, and be made parties to the proceeding, and thereupon said parties filed the following intervening petition:
“Now come German-American Bank, a corporation, William Booth, Henry Nennecke, Fred W. Prange, trustee, James Campbell,' James Campbell trustee, John W. Kaiser, Leo Levis, Wernse & Dick-man, Herman A. Haeussler, and Theresa Klein, and leave of court first having been had, file this their intervening petition herein, and pray to be made parties to this proceeding. They state that they are the owners of the bonds described in plaintiff’s petition as ‘ third mortgage bonds ’ of the defendant company, each of the par value of $1,000, with coupons annexed, due January 1st, 1897, and thereafter, as follows: German-American Bank, fifty bonds; William Booth, twenty-eight bonds; Henry Nennecke, eight bonds; Fred W. Prange, trustee, seventy-five bonds; James Campbell, fifteen bonds; James Campbell, trustee, thirty-seven bonds; James W. Kaiser, five; Leo Levis, three; Wernse & Dickman, three; Herman A. Haeussler, seven; Theresa Klein, five; total, two hundred and thirty-one. They admit that the defendant railway company is the owner of the property described in said petition; that it issued its first, second and third mortgage bonds as described in said petition, and that default has been made in the payment of the interest coupons attached to said third mortgage bonds, which
Mr. Maffitt filed answer and stated upon informa- • tion and belief the petition was true and submitted himself to the jurisdiction of the court and announced his readiness to fulfill his duties as trustee and execute the order of the court.
The company in its answer admitted all the allegations except those specifically denied. It denied that its floating debt for supplies, labor, etc., was $240,000, but alleged it was $166,100; denied that it had not paid the interest due July 10, 1896; averred that the interest in arrear for January 10, 1897, was $28,600; denied that its unpaid taxes amounted to $30,000, but stated they amounted to $25,000, and averred .that it had no knowledge, or belief whether any of its floating debt would be held to constitute a lien having priority over the third mortgage deed of trust.
Thereupon at the April term, 1897, the circuit court of the city of St. Louis, upon the pleadings alone, entered a decree of foreclosure of said “third mortgage deed of trust.” A writ of error was sued out of this court on the eighteenth of June, 1897, by the railway company, and upon an inspection of the record an order of supersedeas was granted upon the plaintiff in error giving a bond in the penal sum of
I, The railway company asserts that manifest error appears in the decree because it finds that “intervenors, the German-American Bank et al., are the owners of two hundred and thirty-one of said mortgage bonds,” because the decree affirmatively shows upon' its face that it was rendered entirely upon the pleadings, and the ownership of said two hundred and thirty-one bonds was not alleged in the petition no r admitted in the answer. If the plaintiff’s petition and the company’s answer were the only pleadings we think this should be held to be error, but when we consider that the intervenors obtained leave to file an intervening petition, and in their said petition aver their ownership of two hundred and thirty-one of the “third mortgage bonds,” and that petition was filed before the company filed its answer, and in its answer it does not deny their ownership, and as the plaintiff sued not only for himself but “all other third mortgage bondholders,” we do not think the court exceeded the admissions in the pleadings in finding, the intervening petitioners were the owners of two hundred and thirty-one of said bonds. But there was no averment even in the intervening petition ivliat particular bonds of said series were owned by the intervenors, and inasmuch as it conclusively appears no evidence was heard, there is no foundation for the finding of the court “that of the eight hundred bonds so issued, the said intervening bondholders herein, the said German-American Bank et al., are the lawful holders of two hundred and thirty-one of said bonds, aggregating the principal sum of two hundred and thirty-one thousand
It is apparent that the ownership of the bonds is a most material fact to be determined in this foreclosure proceeding. If allowed to stand, this finding becomes conclusive, and can never be controverted as between the parties, notwithstanding it may turn out hereafter that the identical bonds described in the decree were not the property of said intervenors, but of third parties who were not parties to this suit. The decree is not responsive to the intervening petition, In that the said petition avers a separate ownership of the different petitioners of certain bonds, whereas from the decree it would seem they were all joint owners of the whole two hundred and thirty-one. If a sale should occur under such a loose finding as this how could the commissioner making the sale, or the sheriff, distribute the proceeds. We agree with the plaintiffs in error that the finding as to the numbers of the bonds belonging to intervenors is rendered unintelligible by the promiscuous use of the word “inclusive,” some eight times, and it is not at all clear whether this word has reference to the last bond which precedes it in each case, or to the two bonds which last precede, and all the numbers which intervene between said two numbers. As already said in a direct proceeding like
II. Again it is assigned as error that, whereas it is charged in the petition and admitted in the answer that “the interest which has accrued on said first and second mortgage bonds has not been entirely paid, but about $3,000 of said interest remains due and unpaid,” the decree, having been rendered without the hearing of any evidence, finds that the interest in arrear on the first and second mortgage bonds amounts to $10', 990. Defendants in error concede that this point is well taken under the well settled doctrine that a court can not base a decree upon a state of facts not set up in the pleadings. Paddock v. Lance, 94 Mo. 283; Bank v. Franklin Co., 65 Mo. 110. In this case as the court was restricted to the pleadings there can be no presumption that the court heard evidence, or that the parties waived the pleading of the necessary facts, and there is no room to indulge the presumption in favor of the finding, as the reason, upon which it is usually based, falls in the light of the record to the contrary.
It is also conceded that the decree is fatally defective on appeal or writ of error because it does not find the amount due on each account so that the defendant may know just what it must pay to avoid a sale of its property. It is clearly the duty of the court to specify the amount due the plaintiff and whereas in this case there are intervening plaintiffs with separate claims, the exact amount due each should be settled by the decree and not leave it to be found or computed by others. Railroad v. Fosdick, 106 U. S. 47; 5
III. Perhaps the most important question raised by the assignments is this. The defendant insists the decree is erroneous because the court did not fix a short day for redemption before sale, upon the payment of the amount found to be due with costs. We think there can be little doubt that this is the practice in the Federal courts in equity. Judge Miller in Howell v. Railroad, 94 U. S. 463, said: “We are of opinion, then, that there is due from the railroad company to plaintiff the amount of his over due and unpaid coupons. For this sum, whatever it may be, he has a right to decree nisi according to the chancery practice — a decree which will ascertain the sum so due, and give the company a reasonable time to pay it, say ninety days or six months or until the next term of the court, in the discretion of that court. If this sum is not paid, the court must then order a sale of the mortgaged property, with a foreclosure of all rights subordinate to the mortgage with directions to bring the purchase money into court.” Obviously it is the above rule which defendant now invokes. Does such a practice now obtain in Missouri? Is it reversible error to order a sale under foreclosure proceedings without first fixing a day for redemption by the mortgagor? We answer that a court of equity has a broad latitude in framing its decrees so as to do justice. It is perhaps discretionary with a court of chancery to name a day previous to which a foreclosure sale should not occur, but we unhesitatingly say -that it is not only not erroneous under the established practice in this State, to fail, to fix a short day for redemption in foreclosures by bills in equity before ordering a sale, but it would be a most unusual proceeding. The practice of thus fixing a d ay
Equally unsubstantial is the point that the circuit