99 Mo. 96 | Mo. | 1889
Robert Fleming is the common source of title in this action of ejectment, brought to recover lots 10 and 11, in block 47, St. Joseph Extension. The plaintiffs claim through an execution sale, and the defendant claims through a prior deed of trust. The case turns upon the questions made in respect >of a trustee’s sale made under that deed of trust.
The deed of trust bears date November 28, 1874, and by it Robert Fleming conveyed the lots before mentioned, and also lots 1 and 2, in block 53, of the same extension, to McLean, in trust, to secure a note to the St. Joseph building association. The note is sufficiently described, and by it Fleming promised to pay to the association, or order, five hundred dollars, with interest at ten per cent.; “said interest payable monthly, on the first Monday of each month, and the principal payable
1. Objection was made to the trustee’s deed on the ground that it did not show any default authorizing a sale. This objection, as we understand it, is based on the theory that, by reference to the constitution and by-laws, it will be seen the note was never to be paid; that the deed of trust secured nothing more than the “payment of dues,” and no' reference is made to a default in that respect. Looking to the constitution and by-laws of‘the association, we find the stock was divided into four series of five hundred shares in each series, each share to be paid for by a weekly payment of one dollar. When the funds on hand amount to five hundred dollars, that amount.is to be awarded to some share, the holder agreeing to pay interest monthly on the amount advanced, and the share upon which the loan, as it is called, is rmade, is called a “redeemed” share; but the holder of it continues to pay one dollar per week, and the monthly interest, until all of the shares in the series are redeemed. For a failure to pay
The person receiving the five hundred dollars has advanced to him the amount which it is contemplated he will be entitled to receive when there is money enough on hand to redeem all the shares of a particular series. But to entitle him to that amount in advance he must continue to pay one dollar each week, and to pay the monthly interest on the amount received in advance of other shareholders. These are the payments provided for in the note, and a default in making these payments 'is a default in the payment of the note. The recital in the trustee’s deed is sufficient, prima facie, to show a default authorizing a sale. It is true persons holding shares not “redeemed” must also pay the one dollar weekly, but that does not affect the question in hand.
2. Lewis Fleming claims to have purchased the note from the building association, and it is contended that this purchase amounted to a payment of the note. The further claim of plaintiff is, that Robert paid this note to Lewis before the date of the trustee’s sale. The evidence upon these questions is, in substance, this : The board of directors of the building association wound up the affairs of the company on November 6, 1877, by a sale of all of its assets. This was done by the written request of all of the shareholders, including those holding redeemed and unredeemed shares. Robert Fleming held three redeemed shares, and the company held his three notes, including the one before mentioned. There was then due upon these notes $407.45. The secretary says Robert bid in these notes at three hundred and seventy-five dollars, and that Lewis paid the amount and took an assignment to himself, which is endorsed on each note, and by it the company transferred each note to Lewis, stating that the interest of the company in each case is one hundred and twenty-five dollars.
The secretary of the association does say that the three notes were bid off by Robert Fleming, Lewis being present; but the proof is undisputed that Lewis paid the amount, and the company assigned them to him. There is no pretense that the deeds of trust, securing these notes, were satisfied of record, or were intended
The agreement made by Lewis of date December 81, 1878, does undoubtedly convert the deed made to him, on the twenty-eighth of the same month, into a mortgage, as between Lewis and Robert. We cannot see that it has, or can have, any other effect. It is awkwardly framed, but enough appears to show that Robert was owing Lewis, and that the latter was security for the former, and that the property conveyed was encumbered. It contemplates„ a sale of the property, the payment of these debts, and the payment of the balance to Robert. We see nothing in it to show that Lewis took the property in payment of the specified debts. Lewis held the building association notes by assignment, and that carried the security. No fraud in these transactions is shown, and we see nothing in them to invalidate the trustee’s sale as between the plaintiffs and the Flemings,H much less as between the plaintiffs and defendant..
The judgment is affirmed;