Krahenmann v. Schulz

This is an action on a redemption bond executed to plaintiff, Katherine Krahenmann, by defendant Alice Schulz as principal, and William Scheer and Julia Scheer as sureties, in the sum of $1250. On April 20, 1933, at a foreclosure sale under a deed of trust on certain property situated on Park Avenue, in the City of St. Louis, the plaintiff, Katherine Krahenmann, who was the holder of the deed of trust became the purchaser of the property. On May 10, 1933, defendant Alice Schulz, the maker of said deed of trust and *Page 856 the owner of said property, instituted a suit in the circuit court of the city of St. Louis to redeem the property from the foreclosure sale, and the redemption bond in suit here was thereupon executed and approved by said court. On April 25, 1934, the redemption suit was by the court dismissed, and the trustee, by his deed conveyed to plaintiff the property, pursuant to the foreclosure sale. The redemption bond in suit was executed pursuant to, and is conditioned in accordance with, the requirements of section 3064, Revised Statutes 1929, Mo. St. Ann., sec. 3064, p. 1894. Section 3063, Revised Statutes of Missouri, 1929, Mo. St. Ann., sec. 3063, p. 1892, provides that property which may be sold under any power of sale in a deed of trust and which at such sale shall be bought in by the holder of the debt thereby secured shall be subject to redemption within one year from the date of such sale. Said section 3064 provides that no party shall have the right of redemption unless he shall give security for the payment of the interest on the debt secured by the deed of trust to accrue within such year after the foreclosure sale, and for the payment of the legal charges and costs of the sale, and for the payment of all interest accrued prior to the sale or thereafter which the purchaser may pay on any prior encumbrance, as well as the interest which may accrue thereon during such year allowed for redemption whether so paid or not, and "all taxes and assessments and interest and costs thereon whether general or special accrued or accruing during such year allowed for redemption," and for damages for all waste committed or suffered by the party giving such security of those claiming under him during such year, unless said property is so redeemed. On August 10, 1934, plaintiff paid all delinquent taxes on the property, together with all interest and costs thereon, as follows: Taxes for the year 1931, $140.57; taxes for the year 1932, $127.94; taxes for the year 1933, $113.77; aggregating $382.28. She also paid the costs of the foreclosure sale amounting to $95.29. The interest on the debt secured by the deed of trust accruing during the year allowed for the redemption amounts to $300. Plaintiff obtained judgment for $777.57, the total amount of these items, against all the defendants, and from this judgment defendants William Scheer and Julia Scheer have appealed here. Appellants complain that the damages assessed are excessive in that they include taxes for the years 1931 and 1932. They contend that the only taxes covered by the bond are the taxes accruing during the year allowed for redemption, and that taxes already accrued at the time of the execution of the bond are not covered. This construction of the bond is out of accord with its express terms. It is expressly conditioned for the payment of all taxes "accrued or accruing *Page 857 during such year allowed for redemption." This language clearly covers taxes already accrued, as well as taxes accruing during the redemption year. To construe the language as covering only the taxes accruing during the redemption year would eliminate the word "accrued" as useless. Moreover, it is elementary law that a mortgagor in possession is in duty bound to pay the taxes. This duty is a continuing one. It does not end when the taxes become delinquent. It would seem, therefore, unreasonable that a mortgagor, in seeking to avail himself of his right to redeem, be allowed to prolong his possession, and extend the time of payment of his mortgage debt as well, for a period of one year, without giving security for the payment of taxes already accrued, as well as for the payment of taxes accruing during such year. Appellants further complain that the damages assessed are excessive in that they include interest accruing on taxes subsequent to the expiration of the year allowed for redemption. This presents a question not properly before us for review since it was not called to the attention of the court in the motion for a new trial. The Commissioner recommends that the judgment of the circuit court be affirmed.