McNutt v. Mutual Benefit Life Insurance

BUEGESS, J. The purpose of this action is to redeem from sale part of a city lot in Kansas City made under a deed of trust to secure the payment of a note for $1,200, payable July 1, 1890. The sale occurred on November 14, 1900, and the suit was brought to the next regular term of the circuit court thereafter of Jackson county. Defendants demurred to the petition upon the ground that it does not state a cause of action. The demurrer was sustained, and plaintiffs declining to — 98 — plead further, judgment was rendered for defendants dismissing the petition, and against plaintiffs for costs. Plaintiffs appeal. The deed of trust was executed on July 1, 1885, by Collin McNutt by which he conveyed the land in question to Samuel M. Jarvis in trust to secure to The Mutual Benefit Life Insurance Company the payment of said note. McNutt died in 1888, and thereafter his heirs at law paid the interest on, and secured extensions of said note until July - 1, 1900, when default was made in the payment of the principal. The deed of trust contained the following provisions: “If default be made in the payment of said note, or any part thereof, or any of the interest thereon when due, or in the faithful performance of any or either of the agreements as aforesaid, then the whole amount of said note, with interest thereon at ten per cent per annum from date, shall, at the option of the holder of said note, become immediately due and payable, and this deed shall remain in force, and the said party of the second part, or in case of his death, inability, refusal to act, or absence from Jackson- county, then Roland R. Conklin, of the county of Jackson, State of Missouri, who shall thereupon become Ms successor to the title of said property, and the same become vested in him, in trust for the purposes and objects of these presents, or in case of the death, inability, refusal to act, or absence from Jackson county, of both said Samuel M. Jarvis and said Roland R. Conklin, then the (then) sheriff of said county of Jackson and State of Missouri (who shall thereupon become their successor to the title to said property, and the same become vested, in him in trust for the purposes and objects of these presents, and with all the powers, duties and obligations, thereof), may at the request of the holder of said note-proceed to sell the property hereinbefore described.”' “In 1893, Jarvis, the trustee, and Conklin his first successor, both left Missouri, and became residents of — 99 — New York City. At that time John P. O’Neill was sheriff of Jackson county, and continued to be sheriff until January 1, 1897, when he was succeeded by Eobert S. Stone, who held the office until after the trustee’s sale was made, November 14, 1900. On October 20, 1900, Jarvis and Conklin, being still residents of New York and absent from Missouri, the holder of the note,which had been then in default since July 1, 1900, requested said Stone, as substitute trustee, to advertise and sell the land under the deed of trust, and he did so, and Eva McFarland bought the land at trustee’s sale, and afterwards sold it to Annie Heckel. “Eva McFarland and Annie Heckel were both strangers to the deed of trust transaction. Plaintiffs do not allege any irregularity, fraud, unfairness or imposition in the trustee’s sale. The sole question in the case is as to whether or not Eobert S. Stone had any power to act as trustee.” It is insisted by plaintiffs that where in a deed of trust, as in the case at the bar, the parties contract that in case of the death or disqualification of the trustee named therein that 'the “then” sheriff of the county (whoever he may be) shall thereupon become his successor to the title, he acts as an individual, and not officially, and, therefore, neither he nor his sureties are liable on his official bond for his abuse of such trust. (Citing State ex rel. Chase v. Davis, 88 Mo. 585; Harwood v. Tracy, 118 Mo. 631.) That the title which the sheriff takes in such circumstances, he takes as an individual, and not officially, and it remains in him until divested by his death, or other disqualification, or by the payment of the debt. It is conceded to be otherwise, however, when he is appointed, successor by the court, for in that case, the statute makes it his duty to act as sheriff, and he is liable on his bond for any malfeasance or misfeasance in office with respect to such trust. From this premise it is argued that upon the removal of the trustee Jarvis and Conklin from the State, — 100 — or other disqualification to act, the title to the property at once vested in the then sheriff of the county, John P. O’Neill. * Upon the other hand, defendants contend that at the time Stone, who acted as trustee in the sale of the land, was requested to do so, Jarvis and ConHin were both absent from Jackson county, and that the words “then” and “thereupon” in the clause, “the (then) sheriff of Jackson county, who shall thereupon become successor, ’ ’ etc., might refer to any one of several different points of time, namely: 1. Any time when the trustee should die, become disabled, refuse to act or become absent from the county, without reference to default or requirement of sale. 2. Any time when a condition of default in the payment of the debt might coexist with the trustee’s death, disability, refusal to act or absence, but without reference to any requirement of sale. 3. The time when default and requirement of sale might coexist with the trustee’s death, disability, refusal to act or absence from the county. The crucial question in this ease is: To which of these times do the words “then” and “thereupon” refer, with reference to the trustee’s absence? It is well settled in this State that the trustee in a deed of trust given upon land to secure the payment of debts takes the title (Schanewerk v. Hoberecht, 117 Mo. 22; Springfield Engine and Thresher Co. v. Donovan, 120 Mo. 423; Hume v. Hopkins, 140 Mo. 65), which upon his death descends to his heirs. But as no such question is presented by this record, and as it is only referred to by way of argument, we will not give the question further consideration. The language used in that part of the deed of trust quoted is somewhat ambiguous, and in arriving at the intention of the parties to it, we must give it a prac — 101 — tical interpretation, as this is the proper way to arrive at snch intent. With this purpose in view it becomes material to ascertain at what time the powers of Jarvis and Conklin as trustees ceased. The petition alleges “that at or near the end of the year 1893, and while the said John P. O’Neill was the sheriff of said Jackson county, and elected, qualified and acting as such sheriff as aforesaid, both the said Samuel M. Jarvis and the said Roland R. Conklin removed from said Jackson county, Missouri, to the State of New York, where they ,have ever since resided, and still reside.” These allegations being material, stand admitted by the demurrer, and they sufficiently show a permanent absence from this State by them and not a mere casual or temporary absence. [Equitable Trust Co. v. Fisher, 106 Ill. 189; Farmers’ Loan and Trust Co. v. Hughes, 11 Hun (N. Y.) 130.] There can he no question hut that, if the deed had provided that Conklin should become successor to the title upon the disqualification or absence from the county of Jarvis, the original trustee, and said nothing about a sheriff as such successor in the event of the removal of both Jarvis and Conklin from the county of Jackson, Conklin would have immediately upon the removal of Jarvis become his successor to the title of .the property for all the purposes of the trust, and, as if in anticipation of such a'possible event, the deed of trust provides that if both Jarvis and Conklin die, or remove from said county, then, the (then) sheriff of said county shall thereupon become their successor to the title to the property, and the same vested in him, in trust, for the purpose named in the deed. If we are correct in holding that Conklin took the title to the property in trust immediately upon the permanent removal of Jarvis from the county, it must logically follow, that O’Neiil who was the sheriff of the county would likewise on the removal of Conklin from the county at once — 102 — become Ms successor to the title of the property, in trust, just as Conklin held it. That such was the intention of the parties to the deed is emphasized by the use of the word “then,” between the words “then the” next preceding it, and the word ‘ ‘ sheriff, ’ ’ next following it, so as to make it read “then the (then) sheriff,” etc. Moreover, the word “then” as used in the deed plainly had reference to whomsoever was sheriff of Jackson county at the time of any one of three things might occur, viz., the death of the then trustees named in the deed, the refusal by the trustee to act, or his absence from the county, and we are unable to see how such language could be construed as meaning a sheriff at a different time, or at any other period than that of the removal of Conklin from the county to reside elsewhere. To hold as defendants contend, would be to confer upon the holder of the note after default in its payment, and the removal of the trustee from the county, the power to make any sheriff of the county trustee by simply requesting him to act as such regardless of the length of time that might elapse after the execution of the deed of trust, provided the note was not barred by the statute of limitations at the time, something we are satisfied was never contemplated by the parties to the deed. Nor was any such authority conferred by the holder of the note. The petition shows that default was made in the payment of the principal note in July, 1895, after both Jarvis and Conklin had removed to New York, and while O’Neill was sheriff of Jackson county, and while it does not allege in express terms that default in the payment of the note was made on the first day of that month, it does aver the five years’ extension of the note until July 1, 1895, and that afterwards, about the 10th of July, 1895, the heirs of the mortgagor forwarded to the holder of the note in New Jersey their application for another extension, which was granted. It thus clearly appears that from the time of said ex — 103 — tension, to-wit, July 1, 1895, to the end of said extension, the note was due and unpaid, and so. remained for ten days, at least, before any arrangements were begun for another extension. That this was a default in the payment of the note we think clear; and during that time the holder of the note clearly had the right to request the “then” sheriff, O’Neill, to advertise the property for sale. And the title to the property, and the power of its disposal having once become vested in him, it there remains until divested by some disqualification upon his part. - It is doubtless true that the deed of trust might have been so drawn as. to confer, in ease of death or disability, refusal to act, or removal from the county of Jackson of the original trustee, the power to sell the property, upon any person who might be the sheriff, at any time after default in the payment of the note that its holder might desire under such a deed of trust; but it was not done in this case. Our conclusion is that the sale of the property by Stone, as sheriff, was without authority, and that the demurrer to the petition should have been overruled. The judgment is therefore reversed and the cause remanded. All of this Division concur.