104 Mo. 127 | Mo. | 1891
— On January 20, 1888, the plaintiffs filed their petition in this cause on which summons was issued and served on Catherine Ward and Edward Ward, defendants, on the same day (Friday). The case was assigned to courtroom number 1.
The original petition is not sent up in the record, and, hence, we are not able to determine what it contained, but we have -a right to presume, and the argument of the appellants’ counsel in this court virtually concedes, that it set forth, substantially, the same cause of action against the defendants, as is set forth in the amended petition. On the twenty-third day of January, defendant, Catherine Ward, filed her application for change of venue from the city of St. Louis, on the ground that the opposite party had an undue influence over the minds of the inhabitants of that city, to the extent that she could not have a fair trial therein. This application was by the court overruled, presumably on the ground that this was a suit in equity, and, as defendants were not entitled to a trial by jury, it made no difference about the prejudice of the people. Thereupon the plaintiffs applied for the appointment of a receiver, and at the instance of defendant, Catherine Ward, this was continued to January 31, and on that day she filed an application for a change of venue, on the ground of the undue influence of the opposite party over the mind of the judge. In this application, she avers that knowledge of this undue influence came to her “about the last part of the week before last.” This application was also overruled. On the same day the court made an order appointing Leslie A. Moffett receiver, to take charge of and manage the property in controversy during the litigation.
On the twentieth day of March, plaintiffs filed an amended petition, as follows:
v.
“Catherine Ward, Edward T. Farish, Mary Sweeney, Defendants.
“ The- above-named plaintiffs, for their amended petition, state, that heretofore, to-wit, on the ninth day of October, 1880, one Rosanna Manley, then being the owner of the realty hereinafter mentioned, by her certain deed of trust of said date executed by her, which deed is recorded in book 642, on page 247 thereof, in the office of the recorder of deeds of the city of St. Louis, conveyed to plaintiff, Marcus A. Wolff, as trustee for plaintiff, James B. Hughes, the following described premises situated in the city of St. Louis, state of Missouri, to-wit:
“A lot of ground in block number 139 of said city, and more particularly described as follows: Beginning in the west line of Sixth street, distant one hundred and forty-four feet south of the south line of Wash street, thence running west at right angles with Sixth street, one hundred and twenty-seven feet, six inches, to the east line óf an alley, fifteen feet wide, thence south along said east line of said alley, twenty-one feet, six inches, more or less, thence east one hundred and twenty-seven feet, six inches, to the west line of Sixth street, thence north along the west line of Sixth street, twenty-one feet, six inches, to the place of beginning, with buildings and improvements thereon.
“ That' said conveyance was to said M. A. Wolff in trust to secure to said James B. Hughes, the party of the third part therein, the payment of seven promissory notes therein described, given for money borrowed of him by said Rosanna Manley, of even date of said deed, payable to the order of James B. Hughes, and bearing interest from maturity at ten per centum
“That in and by said deed said Rosanna Manley did covenant and agree with said party of the third part therein, his indorsees and assignees,’ among other things, to cause all taxes and assessments, general and special, then existing against said property to be paid on demand, and all such thereafter levied or charged on it or therefor to be paid within the times- required by law, and also to keep the improvements upon said premises constantly insured, until said notes should be paid, in the sum of not less than $5,000, and to keep constantly assigned or pledged and delivered to the party of the second part therein, said trustee, for further securing the payment of said notes, all and every policy or policies of insurance held by or issued to her upon said improvements, and also that, if any or either of said agreements should not be performed as aforesaid, then the said third party or his indorsees might effect such insurance for such purpose and pay such taxes, and for repayment of all moneys paid in the premises and interest thereon the said conveyances should be a security in like manner and with like effect as for the payment of said notes.
“ That it was further provided in said deed of trust as follows: ‘Now, if said notes be paid when they become due and payable, respectively, and said agreements be faithfully performed, as aforesaid, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of said party of the first part; but if default be made in the payment of said notes, any or either of them, when they become due and payable,- or in the faithful performance of any or either of said agreements as aforesaid, then this deed shall
“ Plaintiffs further state that thereafter on the fourteenth day of October, 1880, said Rosanna Manley, by her deed of trust of the last-named date, conveyed said premises to defendant, Edward Ward, and his successors in trust forever, in trust for the sole and separate use of his wife, the defendant, Catherine Ward, the daughter of Rosanna Manley, which deed is recorded in said recorder’s office in book 642, at page 265 thereof; that said defendant, Catherine Ward, in and by such deed, did agree, as a part of the consideration thereof, to assume all deeds of trust then upon said premises in such deed conveyed, and the said Edward and Catherine Ward ever since the last-named deed have been, and now are, entitled to said premises subject to the deeds of trust herein mentioned and claim to be the owners of said premises.
“ Plaintiffs say that the defendants, Edward T. Parish and Mary Sweeney, claim to have some interest or estate in said premises, and for that reason are made parties defendant herein.
“Plaintiffs state that the several interest notes mentioned in said deeds of trust were paid, but that the said principal note of $5,000 was not paid at its maturity, and the plaintiff Hughes ever since the execution of the last-named note hath been and now is the holder thereof.
“Plaintiff states that there was executed in duplicate by said Hughes on the one part and said defendants, Edward and Catherine Ward, on their part, the following instrument:
“ ‘St. Louis, October 9, 1883.
“ ‘Received of Edward and Catherine Ward their six negotiable promissory notes, dated October 9, 1883,
“ ‘Now, if the said notes for the sum of $175 each, be promptly paid as they severally become due, respectively, then the payment of said principal note,, for the sum of $5,000 as aforesaid shall (at the request of said E. and C. Ward, as evidenced by their signature thereto) be extended for the period of thirty-six months from the ninth day of October, 1883.
“ ‘ But if the said notes for the sum of $175, each or any of them, or any part of either, be not promptly paid when due, or if said Ward shall neglect or refuse to faithfully perform the covenants in said deed of trust, as to insurance and the payment of taxes, as therein provided, then, in either of such cases, this agreement shall be null and void, and the legal holder of said principal note for $5,000 may proceed to enforce payment thereof under said deed of trust, the same as if this agreement had not been made.’ Signed in duplicate.
“That the defendant Ward executed and delivered to Hughes the' several notes mentioned as being made by them in the instrument last described; that, since the institution of this suit, plaintiffs have been informed and now so aver that said Rosanna Manley died in said city where she resided, in June, 1886, leaving no property belonging to her.
“Plaintiffs state that the defendants and Rosanna Manley failed and neglected to pay state or city taxes
“That, the defendants and Rosanna Manley neglected and failed to pay the principal note of $5,000, made by Rosanna Manley, or any of the interest earned thereon, save in so far as such interest was paid by payment of the first five interest notes made by said Wards as above mentioned ; and that said general and special taxes and the interest and penalties thereon, and the said thirty-six months’ Ward interest note, and the said note of $5,000 made by Rosanna Manley and the interest accrued thereon, have never been paid, satisfied or discharged by the defendants or any of them, or for them, except as hereinafter stated, and that the defendants and Rosanna Manley failed to keep the improvements insured as provided by the deed of trust aforesaid ; that the said taxes and notes last mentioned remaining unpaid, plaintiff, M. A. Wolff, as trustee in said .deed of trust, at the request of said Hughes, caused said premises to be advertised for sale by notice, giving time, terms and place, published in the Missouri Republican, a newspaper printed and published in the city of St. Louis.
“That said advertisement, as originally published on the thirtieth day of April, 1887, and as published on the first, second and third days of May, 1887, by mistake
“That, believing said notice so published to be sufficient and his actions thereunder valid and proper, said trustee proceeded to sell said premises in accordance with the terms of said deed of trust and said notice, and at such sale, plaintiff, George P. Wolff, was the highest bidder at the sum of $4,250, and said premises were sold to him; that, thereafter, said trustee, in accordance with the terms of- said deed of trust, executed a deed as trustee thereunder to said George P. Wolff, purchaser at said sale, conveying said premises to said George P. Wolff, which said deed is dated the twenty-third day of May, 1887, and is recorded in book 831, at page 145, of said recorder’s office ; but that said defect in said notice does not appear in said deed last mentioned.
“That plaintiff, George P. Wolff, believing that he had acquired good title to said premises under said sale, proceeded to pay off and discharge the liens for general and special taxes, paying, in discharge of the general taxes of 1884, 1885 and 1886, the thirtieth day of June, 1887, the sum of $496.76, and in discharge of the. special tax bill on the twenty-third day of August the sum of $176.50; that he further caused said premises to be insured, paying as premium therefor on the third day of August, 1887, the sum of $45, and that he expended for necessary repairs on said premises the sum of $34.85 between the seventeenth day of September and the thirtieth day of September, 1887.
“That said premises at the time of the deed to George P. Wolff were occupied by a number of tenants then holding under the defendants Ward, some of whom thereafter attorned to said George P. Wolff, and said George P. Wolff has collected rents from said tenants, so attorning, amounting to--dollars, for which he now stands ready to account.
“Plaintiffs state that the defendants, other than Parish and Sweeney, have, since sale, constantly asserted said sale to be void and instituted a suit against the plaintiffs to set the same aside, but such defendants did not prosecute the same and dismissed their suit when it was called for trial.
“That the defendants, other than Parish and Sweeney, have refused to surrender possession of the premises to said George P. Wolff, and have aided and assisted the occupants of said premises in resisting steps by said George P. Wolff, to obtain possession of said premises; the defendants, other than Parish and. Sweeney, claiming, and causing such tenants to claim, that the said sale to George P. W olff was void.
“ Plaintiffs say that though, at the times herein-before stated, they believed the said sale and proceedings thereunder to be valid yet they are now advised by counsel, and so aver,, that by reason of said mistake and defect in said notice of sale, that said sale by said trustee, to George P. Wolff, under said deed of trust from Rosanna Manley was void.
“Plaintiffs say that the defendants Catherine and Edward Ward have no means or property save such interest as they may have in the premises described; that the defendants Edward and Catherine Ward, notwithstanding said sale, ever since hath been, and now are, collecting large rents from said premises which they convert to their own use, and they have not paid, or offered to pay, anything towards either principal or interest of their indebtedness.
“Plaintiffs say that said premises are and will be insufficient in value to pay.the debt secured by the first-mentioned deed of trust, and that, upon foreclosure thereof by sale, a portion of said debt will remain unpaid.
“Plaintiffs further aver that, unless said rents be collected and applied towards payment of the debts secured by said deed of trust from Rosanna Manley, the plaintiff will be wholly without remedy for the collection of such portion of the indebtedness remaining unpaid after the sale of the premises as hereinafter prayed.
“ To the end therefor, that the said deed of trust from Rosanna Manley may be foreclosed for the payment of said debts secured thereby, the plaintiffs pray
On April 4, 1888, the cause was, by consent, transferred to courtroom 2, and next day a demurrer was filed to the amended petition assigning as grounds of demurrer:
“ First. The petition failed to state facts constituting a cause of action.
“ Second. There is a misjoinder of causes of action in the petition.
“ Third. There is no equity in the bill.
“ Fourth. There is a misjoinder of parties plaintiff.
“Fifth. There is á defect of parties defendant.”
The grounds urged in this court for a reveisal of the judgment are: First. That the court erred in overruling the application for a change of venue on account of the undue influence of the opposite party over the minds of the inhabitants of St. Louis. Second. That there was error in overruling application for change of venue on account of the undue influence of the opposite party over the mind of the judge presiding in courtroom number 1. Third. That the petition does not state a cause of action, and that there is a misjoinder of plaintiffs. Fourth. That defendant Edward Ward’s name was omitted from the caption of the amended petition, and he was, therefore, not a party to the suit, and it was
The record shows that defendant, Catherine Ward, excepted to the action of the court in overruling her application for change from the people and the judge. These applications do not constitute a part of the record proper. Stearns v. Railroad, 94 Mo. 317, and cases cited. And this court will not review the action of the court thereon unless exceptions were saved and the matter brought to the attention of the court by motion for new trial. Railroad v. Carlisle, 94 Mo. 166, and cases cited.
As to the action of the court in the appointment of a receiver, there was no exception, and the matter not having been called to the attention of the trial court by motion for new trial, it cannot be reviewed on the record before us. As to the application for a change of venue from the judge, however, we will say that the matter rests largely in the discretion of the court, and in this case the application was made eight or ten days after knowledge of the cause for which the change came to the applicant, and it was for the court to say whether the application was timely or not. State ex rel. v. Matlock, 82 Mo. 455 ; State ex rel. Ward v. Lubke, 29 Mo. App. 555.
This last case was an application by Mrs. Ward for a writ of mandamus to compel the judge to grant her a change of venue in this case. It was refused by the court of appeals. This refusal to grant a change of venue from courtroom number 1 did not operate to the prejudice of defendants, however, in this case, because it was on stipulation transferred to another room for determination. As to the other application for a change of venue, and the action of the court in the appointment of a receiver, we will say, that the questions discussed are necessarily involved in the determination of the demurrer filed by appellant, Catherine W ard, and by the court overruled.
This, therefore, brings ns face to face with the issues presented by the demurrer. These are: First. Can a mortgagor resort to a bill in equity in Missouri for the foreclosure of a mortgage? Second. Can the petition in the case be held to be a bill in equity for the foreclosure of a mortgage, and does it state facts sufficient to constitute a cause of action ? and third, has each of the plaintiffs an interest in the proceeding, and, if so, were they all properly joined as plaintiffs in the bill ?
I. We think there is no question that parties may resort to a bill in equity in this state for the foreclosure of a mortgage. Counsel for appellants in their brief say: “It is true, the courts in certain cases in this state decree an equitable foreclosure, where a case for equitable relief exists, necessary to the effectuation of the foreclosure and so bound up with the case for foreclosure that it cannot be tried separately.” It has often been held that a proceeding under the statute for foreclosure is a proceeding at law. 77 Mo. 499, and cases cited. But it has never been held that courts of equity had, by the statute, been deprived of jurisdiction, in proper cases, to afford relief. 21 Mo. App. 159. The general rule that these courts have jurisdiction in such cases is well established. 2 Jones on Mort., secs. 1443-1450.
II. Does the petition in this case state facts sufficient to constitute a cause of action in a court of equity
In this connection it is well enough to state that defendant Parish was trustee in a deed of trust subsequent to the Manley deed of trust, to secure to defendant, Mary Sweeney, the payment of a sum of money which the court found amounted at the time of the trial to $635.21.
Do these facts alleged by plaintiffs, and admitted by the demurrer, constitute a good cause of action in a court of equity 1 We think they do. It is conceded by appellants that the sale by the trustee, under the power given in the deed of trust in this case, whether valid or invalid, conveyed to Geo. P. Wolff the title of the cestui que trust. This is the unquestioned law. Wilcoxon v. Osborn, 77 Mo, 632, and cases cited; Wells v. Lincoln Co., 80 Mo. 424.
The notice was published for the first time on the first day of May, 1887, and the day set for the sale was “Monday, May 22, 1887.” The notice was inserted in the paper in this form the second and third days of May. Then the discovery was made that the twenty-second day of May fell on Sunday, and the notice was changed so as to read “Monday, May 23, 1887,” as the day fixed for the sale. It is conceded that the notice thus corrected was not published twenty, but only nineteen, days before the day of sale. It is contended that the mistake in the notice as first published was clearly a clerical error and could not have operated to mislead anyone. If we could say positively that no one was misled by it, this position would be tenable. But we cannot take judicial notice, nor can we assume that no one was misled.
In Dana v. Farington, 4 Minn. 433, the notice was changed from the twenty-third to the twenty-fifth of May, and it was found by the jury that the mortgagor did not know of the change, though both notices were published in the same paper. The sale was held to be invalid.
We do not deem the cases of Gray v. Shaw, 14 Mo. 341 ; Powers v. Kueckhoff, 41 Mo. 425, and Stephenson v. January, 49 Mo. 465, cited by appellants, as authorities applicable to the facts of the case at bar.
In the second place it is argued that a trustee has power to adjourn a sale and that the change in the notice in this case operated as an adjournment of the sale from May 22 to May 23. It may be conceded that at common law the trustee had power to adjourn a sale, if he deemed it to the interests of all concerned to do so, but in that event the adjournment had to be made at the time and place appointed for the sale. Jackson v.
On the other hand, however, the supreme court of Illinois, in Griffin v. M. Co., 52 Ill. 130, and Thornton v. Boyden, 31 Ill. 200, has held that while a trustee may adjourn a sale yet, in case he does, he is required to give a new notice for the full time required by the terms of the trust deed. We do not deem it necessary to decide, whether the trustee would have power to appear at the time and place set for the sale in the notice and by a public announcement adjourn the sale to a future day and make a valid sale at such future day without giving any further notice than this public announcement, or not, for that was not done in this case. It will be time enough to dispose of that question when it arises. Hut in the absence of any statute on this subject in Missouri we hold that a trustee would have no power to adjourn a sale, before the day of sale, by simply changing the time at which the sale will take place. If the day of sale is changed, the notice must be published for the full time required by the terms of the trust deed, after such change is made.
But it is again urged that, ‘ ‘ even if the sales were void, the plaintiffs in this case cannot question it by a suit. That remains for Catherine Ward and her only.” A large part of the original brief and all of the brief in reply of appellants is devoted to the discussion of this
Let us see then what appellants have admitted by the demurrer, in regard to the validity of the sale. In one part of the petition, after averring the execution of the deed by said Manley to Edward Warden the trust for his wife, it is alleged that “said Edward and Catherine Ward ever since the last-named deed have been and now are entitled to said premises subject to the deeds of trust herein mentioned and claim to be the owners of said premises.” The petition also avers that the said sale was void by reason of the mistake and defect in the notice mentioned. It is also averred that appellants “ have since the sale constantly asserted said sale to be void that they “have refused to surrender possession of the premises to said George P. Wolff, and have aided and assisted the occupants of the premises in resisting steps by said George P. Wolff to obtain possession of said premises; the defendants * * * claiming and
Appellants must, therefore, be taken and held in the determination of this demurrer, as admitting : First. That they claim to own the property subject to the deed of trust. Second. That they claim that the sale to George P. Wolff was void. Both parties have, therefore, agreed that'the sale is void, one averring it in haec verba and the other claiming it to be void. This removes the major premise of the syllogism of appellants’ counsel, and his conclusion must of necessity go with it.
A court of law is not competent to deal with the subject-matter of this action. Many complications in regard to the title to the property in dispute and the interests of the several parties therein, which arose out of the transactions at and since the sale in May, 1887, so that no court, except one possessing the strong arm of equitable jurisdiction, could in one action or several grant full and adequate relief. There was Hughes holding a balance on the Manley deed of trust; there was George P. Wolff who had paid $4,250 of the Manley deed of trust, and who had paid taxes and insurance since the sgle, and here were George P. Wolff and Hughes and Marcus A. Wolff, all parties to the deed of trust given since the sale. Where was the legal title to this property under these conditions? The sale was irregular but George P. Wolff obtained some interest in the deed of trust and property covered by the deed of trust. Wilcoxon v. Osborn, 77 Mo. 621; Honaker v. Shough, 55 Mo. 472; Jones v. Mack, 53 Mo. 147; Russell v. Whitely, 59 Mo. 196. Under these circumstances, what title did he convey to Marcus A. Wolff as trustee of Hughes ? The titles and interests of all the parties in and to the property were such, it seems, that there was no way out of the embarrassments and complications except through a court of equity.
Aud we think Marcus A. Wolff a necessary party to the case, either as plaintiff or defendant. He, as trustee, held the title to the property by virtue of the Manley deed of ¡trust as well as the Geo. P. W olff deed of trust, and in order that there might be no question about the title under this foreclosure, it seems, that it was very appropriate, indeed, that he should have been joined in the action.
The interests of plaintiffs being different, were they properly joined as plaintiffs in the bill ? Mr. Jones in his work on mortgages, section 1869, says: “It is not very material, however, in an equity suit, whether
The plaintiffs, though their interests in the controversy were not joint, but diverse even, were properly joined as plaintiffs.
IY. It is insisted that appéllants were not interested in the deed of trust given by Geo. P. Wolff to Hughes’ trustee, and, as the petition prayed to have that canceled, there was a misjoinder of causes of action. If Hughes and his trustee had not joined with Geo. P. Wolff in asking this tobe done, there might be some
Y. Another objection is urged that the name of Edward Ward was omitted from the caption of the amended petition and hence no judgment could be rendered against him. There is no merit in this objection. His name is often used in the body of the petition as a defendant, and it is evident from the whole record that the omission of his name from the caption of the petition was simply a clerical error. He was made a party to the action in the first instance; no order of dismissal as to him anywhere appears in this record and final judgment was rendered against him. The rule is to look to the body of the petition to ascertain its purport and sufficiency, and this shows beyond controversy that he was retained as a defendant. Bliss, Code Plead., sec. 156; Fuggle v. Hobbs, 42 Mo. 537; Headlee v. Cloud, 51 Mo. 301.
YI. Counsel for appellants complain of the action of the court in appointing a receiver and turning Mrs. Ward out of her home without a trial. Having found that this is a proceeding in equity, it follows, as we have said, that the circuit court had jurisdiction to appoint a receiver to take charge of the property, to