Union Central Life Insurance v. Rogers

| Mo. | Mar 20, 1900

BURGESS, J.

This is a suit in ejectment to recover the possession of a large farm in Monroe county. The petition is in the usual form, and alleges that plaintiff was the owner and entitled to the possession of the land on the first day of November, 1896, and that defendant on that day entered into the possession of the same and unlawfully withholds the possession thereof from plaintiff.

The answer alleges that the land in question was conveyed by defendant to a trustee to secure to plaintiff a large sum of money, to-wit, $16,000. That after default was made in the payment of the money when it became due, the trustee on the 24th day of October, 1896, exposed the land to sale, in pursuance of the terms of the said deeds of trust, and the same was at such sale purchased by the plaintiff company at the price of $16,769.91, at which time the said defendant notified the plaintiff that he intended to redeem said property under the provisions of the statute in such cases made and provided, and that on the 20th day of November, 1896, in vacation of court, defendant executed his bond with securities, in the sum of $1,250, conditioned for the payment to said plaintiff company of the interest which should accrue to it on the sum of $16,-769.91 from the date of said sale, and to pay all damages and waste which might be occasioned by him or permitted by him after said sale, which bond was approved by the clerk of the court and which, it is alleged, was in full force and effect at the time this action was brought. “That by virtue of said bond, .and by the provisions of the statute in such case made and provided, the defendant became entitled to, and secured to himself the right to redeem the said property at any time within one year from and after the said 24th day of October, 1896, the day on which the same was purchased by the said company, and therefore defendant says -this said action was brought by the plaintiff company before any right of action had accrued to said company to recover the said property sued for in this action.”

Plaintiff filed reply to the answer in which all allegations therein were denied.

Defendant was the owner of the land in controversy at tho date of the execution of the deed of trust by him under which it was thereafter sold by the acting trustee, the then sheriff of the county, on the 24th day of October, 1896, after notice, and in accordance with the provisions of that deed of trust, after default was made in the payment of the principal debt and accrued interest, which at that time was $16,769.91. At this sale the plaintiff, the beneficiary in the deed of trust, became the purchaser of the land for the amount of the debt, and accrued interest. Defendant Rogers was present at the sale, and testified that shortly after the sale and on the same day he notified T. W. Roudebush, the special agent for plaintiff, and who bought in the land for it at the- sale under the deed of trust, of his intention to remain in possession of the land, and to redeem it from the sale. Charles A. Creigh, a witness for defendant, testified that at the instance and request of defendant, he also, on the same day of the sale, gave said agent notice of his, defendant’s, intention to remain in possession of and redeem the property.

The agent Roudebush testified in behalf of plaintiff, and denied that defendant said anything to him about redeeming the land on the day of its sale under the deed of trust, or at any other time, but was not ashed, nor did he deny, that Creigh told him .at the request of defendant on the same day of the sale that defendant intended to remain in possession, and redeem -the land.

The trustee made and. delivered to plaintiff on the day of the sale a deed in the usual form to said property. The defendant remained in possession and on the 23d day of November, 1896, filed a bond as required by section 7080 of the Revised Statutes of 1889, with the clerk of the circuit court of Monroe county, Missouri, in the sum of $1,250, conditioned as required by said section, to pay to the plaintiff the interest which should accrue upon the amount of the aforesaid indebtedness at the day of sale, and all damages and waste occasioned or permitted by him within the time fixed by the statute in which he could redeem said property, which bond was, on the 23d day of November, 1896, in vacation of the circuit court of said county, approved by the clerk thereof. Notice of the filing and approval of this bond was given plaintiff by registered mail.

At the close of the evidence the court at the request of plaintiff instructed the jury, “that under the law and the evidence adduced in this cause, your finding must be for the plaintiff.” There was judgment in favor of plaintiff for the possession of the property, and one cent damages.

Defendant appeals.

The first question for consideration, is with respect to the giving of notice by defendant to the beneficiary in the deed of trust, who became the purchaser of the property at the sale thereunder, of his intention to redeem the same.

By section 7079, Revised Statutes 1889, it is provided, in substance, that when any real -estate shall be sold under a deed of trust pursuant to the powers therein,- .and shall be bought by ¡the cestui que trust or assigns the same shall be subject to redemption within one year from the date of sale, and the purchaser at the sale shall receive a certificate of sale to hold until the expiration of the year. The following section 7080, says: “No party shall have the benefits of the preceding section until he shall have given security to the satisfaction of the circuit court for the payment of the interest to accrue after the sale, and for all damages and waste that may be occasioned or permitted by the party whose property is sold. In ease the circuit court is not in session, such security may be taken by the clerk of said court.”

While it will be observed that the only condition precedent to redemption by a person whose land is thus sold within a year thereafter, is the execution of the bond required by section 7080, supra, it was held by this court in Vanmeter v. Darrah, 115 Mo. 153" court="Mo." date_filed="1893-03-25" href="https://app.midpage.ai/document/vanmeter-v-darrah-8010865?utm_source=webapp" opinion_id="8010865">115 Mo. 153, that the spirit of the statute “requires the trustee to make to the purchaser a deed, and he may do this on the date of sale, unless the person entitled give notice that he intends to redeem, in which case he should be allowed by the trustee a reasonable time in which to give the security, considering the circumstances of the case.” According to the decided weight of the evidence, plaintiff by its agent was notified of defendant’s intention to redeem the property shortly after the sale, and, on the same day, but plaintiff insists that under the ruling in the case cited, the notice should have been given to the acting trustee who sold the property instead of to plaintiff, and as this was not done — defendant was not entitled to redeem. While no one but the trustee can make a deed to land sold by him under a deed of trust, section 7079, supra, says: . “And at such sale the purchaser shall receive a'certificate of purchase, setting forth the property sold and amount of purchase money received, which certificate shall be delivered to the trustee upon the application for a deed at the expiration of twelve months,” wdiieh by implication at least, is to say that the deed shall not be executed before that time, and the same liberal construction "which seems to justify the trustee in making to the purchaser a deed, on the day of sale, in the absence of notice by the grantor in the deed of trust of his intention to redeem, justifies us in holding that notice to the cestui que trust was sufficient, for the very cogent reason that it was its interest and not the trustee’s that was to be affected thereby.

The question then is, was the bond required by statute in order to entitle defendant to redeem filed in time ?

In Updike v. Merchants’ Elevator Co., 96 Mo. 160" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/updike-v-merchants-elevator-co-8009356?utm_source=webapp" opinion_id="8009356">96 Mo. 160, it was held that such 'security must be given at or within a reasonable time after the sale, and that the security which was not givén for four months after the sale was too late. In Dawson v. Egger, 91 Mo. 36, the sale was made September 15th, and the bond was not given until the 28th day of November, next following. It was held that it should have been given on the day of sale, and was too late.

In Vanmeter v. Darrah, supra, it was held that where security for redemption was not given and filed, until ¡more than four months after the trustee’s sale, and three and a half months after the grantor had recovered from temporary insanity, it was not within such reasonable tíme as the statute contemplates.

In Godfrey v. Stock, 116 Mo. 403" court="Mo." date_filed="1893-06-05" href="https://app.midpage.ai/document/godfrey-v-stock-8010960?utm_source=webapp" opinion_id="8010960">116 Mo. 403, the property was sold at -trustee’s sale under a deed of trust on .the 11th day -of February, 1890. On -the day of sale, the mortgagor, plaintiff, notified the trustee and the beneficiary in the deed of trust who became the purchaser of the property at the sale that he proposed to give bond, and redeem the property and two days thereafter filed the requisite bond in the proper office. It was held to have been filed in time.

It thus seems that what is reasonable time depends upen the circumstances ’of each particular case. Twenty-six days elapsed from the date of the sale until defendant filed with the clerk of the circuit court of Monroe county his bond in the sum of $1,250 for redemption, conditioned as required by statute, to pay plaintiff the interest which should accrue upon tbe amount of bis indebtedness to plaintiff, and all damages and waste occasioned or permitted by bim witbin tbe time fixed by statute in wbicb be could redeem said property. Tbe bond given was large for a man all of whose property bad been sold at a forced sale. He lived eighteen miles from tbe clerk’s office, in wbicb tbe bond was required by law to be filed. And, while the law required of bim diligence and promptness in taking steps to recover a right given him by tbe statute, we are unwilling to say as. a matter of law that the bond was not filed in time, but think under tbe circumstances, that the ease should have 'been submitted to the jury. Nor do we think the fact that plaintiff bad in tbe meantime contracted for tbe sale of tbe land alters tbe case.

Tbe judgment is reversed, and tbe cause remanded, to be proceeded with in accordance with tbe views herein expressed.

Qanlt, P. J. and Sherwood, J. concur.