(222 S.W.) or answer. The question of whether there are defects of parties plaintiff or defendant should be raised by demurrer or answer, and upon failure to so do the question is waived, and cannot be urged have adjudged that the three half-brothers | 3. Appeal and error 187(1)-Defects of of Jasper Newton Punch had no interest in parties must have been raised by demurrer If the lands to which they asserted title. there was not an adoption of plaintiff as said Jasper Newton's son and heir, the halfbrothers were his only heirs, and inherited an undivided one-half interest in the land in controversy, and the widow the other onehalf, whereas if there was such a contract, and it is enforced, the half-brothers take nothing. A third object of the suit was to have the lands partitioned between plaintiff and Mrs. Soonie Punch, the widow. on appeal. 4. Evidence 76-Defendant's failure to tes tify casts suspicion on his claims. Defendant's failure to testify to the salient things contained in his answer casts suspicion upon the bona fides of his claims; he having peculiar knowledge as to such facts. 5. Acknowledgment 54-Acknowledged deed of trust and note secured thereby admissible, without proof as to genuineness. edged deed of trust and note secured thereby Under Rev. St. 1909, § 2818, duly acknowlwere properly admitted in evidence in action to foreclose deed of trust, without proof that defendant had signed the deed of trust; the ac dence of all facts recited therein, including the fact that defendant has signed and delivered note to plaintiff. It is needless to state more of the facts, because the abstract of the record is in such condition that we cannot look beyond the record proper, and that is free from error. The bill of exceptions neither sets out the motion for new trial in the case nor calls for it; hence exceptions taken during the trial cannot be considered. The motion for new trial is referred to in the bill of ex-knowledgment making the deed of trust eviceptions in practically the same words in which reference was made in a bill of exceptions to the like motion in the case of State ex rel. Peet v. Ellison, 196 S. W. 1103. In said case the effect of omitting to copy or call for the motion for new trial in the bill of exceptions was carefully considered, and the decisions in this state on the subject reviewed. That decision, as well as those referred to in the opinion in the case, determine that with such a reference to the motion as was therein made, and made in the present case, it is not preserved in the bill of exceptions as a part of the bill, and leaves nothing to be examined on the appeal except the record proper. The judgment, therefore, is affirmed. All concur, except WOODSON, J., absent. SANDERS v. KASTER. (Supreme Court of Missouri, Division No. 1. 1. Mortgages 427 (2)-Trustee not a neces- Under Rev. St. 1909, §§ 2828, 2829, the trustee named in deed of trust containing power of sale in trustee was not a necessary party to action by cestui que trust to foreclose the deed of trust. 2. Appeal and error 187 (3)-Failure to join trustee in action to foreclose not available unless raised by answer or demurrer. In action by cestui que trust to foreclose deed of trust, defendant could not complain on appeal of failure to make trustee a party to the action, where the question was not raised by demurrer or answer in lower court. 6. Appeal and error 232 (2)—Objection to introduction does not raise question of want of proof of signature. In action to foreclose deed of trust, defendant's objections to introduction in evidence of deed of trust and note, "for the reason, under held insufficient to raise objection on appeal the pleadings, it is irrelevant and incompetent," that proof of signature had not been made. Appeal from Circuit Court, Putnam County; L. B. Woods, Judge. Action by August Sanders against N. L. Kaster. From an adverse decree, defendant appeals. Affirmed. Action to foreclose a deed of trust on 160 acres of land in Schuyler county, Mo. The petition is in conventional form, but has therein the allegation that N. L. Kaster, one of the makers of the note secured by the deed of trust, and also one of the makers of the deed of trust, was in 1913 declared by the probate court of Schuyler county to be a person of unsound mind, and that John Sloop was appointed as his guardian. petition alleges two interest payments upon the note of $7,600, of dates March 8, 1912, and March 17, 1913, and for the sum of $456 each. The note was dated March 10, 1911. The By answer the defendant avers that he was readjudged by the probate court of Schuyler county to be a person of sound mind on March 30, 1916. This was some two weeks after the filing of the suit and service of process in the case. In his answer, after a general denial, defendant, N. L. Kaster, avers that he was a person of unsound mind at the time the note and deed of trust were signed, and had been for some months prior thereto, and continued to be for some months For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Deeds of trust in the nature of mortgages may, at the option of cestuis que trust, their executors or administrators or assigns, be foreclosed by them, and the property sold in the same manner in all respects as in case of mortgages.". thereafter, all to the full knowledge of the f plaintiff. He asks that the deed of trust and note be canceled and for naught held, and in a further count of his answer he asks to be adjudged the two payments of interest mentioned in plaintiff's petition. Defendant also avers that he received no benefit or money Note that this section authorizes the "cesfrom said note and deed of trust. The rec- tuis que trust, their executors or administraord shows the filing of a reply. The addi- tors or assigns," to foreclose such deed of tional abstract of the record shows the reply, trust, "and the property sold in the same and in it a plea of res adjudicata. Upon a manner of all respects as in case of morttrial the court found the issues for the plain-gages." The foreclosure of mortgages is tiff, and ordered defendant's equity of re- governed by section 2828, K. S. 1909, which demption foreclosed, to satisfy an adjudged sum of $10,871.46, including an attorney's fee of $750. After defendant was adjudged to be of sound mind, he filed answer, and the case proceeded as between plaintiff and defendant. On change of venue the trial was had in Putnam county. From the adverse decree, defendant has appealed. Further detail of facts will be left to the opinion. A. D. Morris, of Lancaster, and J. M. Jayne, of Memphis (Lozier & Morris, of Carrollton, of counsel), for appellant. Higbee & Mills, of Lancaster, and Campbell & Ellison, of Kirksville, for respondent. GRAVES, J. (after stating the facts as above). I. It will be noted that the trustee in the deed of trust was not made a party to this foreclosure proceeding, nor is Bert Kaster, the wife of N. L. Kaster, made a party, although she signed the same, as well as the note secured thereby. It develops in the testimony that Mrs. Kaster is the daughter of plaintiff, and that she had later sued for divorce, and had obtained judgment of divorce and alimony in the sum of $4,000 which judgment was settled during the guardianship of Kaster at the sum of $3,500. Of this we may have occasion to speak later. mention it now as tending to show the status of the parties at the institution of the suit. We Appellant contends that the failure to make the trustee a party renders this judgment void, and this is the point we have in view now. Kaster was the owner of the land, and during the life of Kaster the wife only had dower initiate. How this was determined by the divorce suit does not appear in this record. There may be something in that decree which precludes her from further interest in Kaster's property. But this is adrift from the point. Can this judgment stand, absent the presence of the trustee as a party? Was his presence as a party so necessary as to render the judgment void? This is the point we now have before us. The deed of trust in this case is the usual one, with power of sale in the trustee. It occurs to us that the statutes fully answer the contention of the appellant. The pertinent portion of section 2829, R. S. 1909, reads: "All mortgagees of real estate or personal esdebt or damages secured amounts to fifty dollars tate, including leasehold interests, when the or more, may file a petition in the office of the circuit court against the mortgagor and the actual tenants or occupiers of such real estate, or persons in possession of personal property, setting forth the substance of the mortgage deed, and praying that judgment may be rendered for the debt or damages, and that the equity of redemption may be foreclosed, and the mortgaged property sold to satisfy the amount due." The parties to this kind of suit are the mortgagee, as plaintiff, and the mortgagor, as defendant. If there are tenants, then the tenants are to be made defendants. In the case before us there was no question of tenants. The maker of the deed of trust and his legal guardian were made the parties defendants. Section 2829, supra, gives to the cestuis que trust in these deeds of trust, the same rights to foreclose as are given to mortgagees in the case of mortgages. In other words they can, în court, do just what they could request their trustee to do by way of a sale under the instrument. The section contemplates two methods of foreclosing the equity of redemption; 1. e. (1) by a suit in court by the beneficiary in the deed of trust, as plaintiff, and the maker of a trust deed, as defendant; and (2) by advertisement and sale by the trustee under the terms of the deed of trust. [1] The reference in section 2829 to foreclosures of mortgages compels us to read sections 2828 and 2829 together in order to get the full meaning of the latter section. When so read together, section 2829 means that, if the beneficiary in the ordinary deed of trust prefers to foreclose by court action, then such beneficiary is the sole necessary party plaintiff, and the maker of the deed of trust the sole necessary party defendant, unless there are tenants (a question not involved here), in which case the tenants should be made parties defendant. The statutes go no further. So that we conclude that it was unnecessary to make the trustee a party under the provisions of these sections. We are cited to the provisions of section 2859, R. S. 1909, but an examination of that section will (222 S.W.) such as we have here under consideration. [ have quoted, supra; but as the method of This statute refers to deeds of trust in which procedure under section 2829, the section una foreign corporation or individual is ader which this action is brought, is to be detrustee. termined by section 2828, by direct reference thereto, the language used is of high import here. But why go further? The terms of the statutes (sections 2828 and 2829, when construed together, as they must be, because that latter refers to the former) settle the but by no means a necessary party, in a proceeding under section 2829, supra. The statute precludes him from being a party plaintiff, and he serves no useful purpose as a party defendant. This point is therefore ruled against the appellant. It is true that we say in cases that the trustee has the bare naked legal title, but, on the other hand, the trustee cannot divest himself of that bare naked legal title, nor the maker of the deed of trust of his equity of redemption, save and except he be request-matter. The trustee might be a proper party, ed so to do by the beneficiary in the instrument. He can only act when he gets the command from the real party in interest; i. e., the beneficiary. But, as said above, the statute (section 2829, supra) contemplates two methods of reaching the same end. In one the trustee is a factor, because at the request of the beneficiary he can sell the property and pass title. In the other the beneficiary is permitted to act for himself and have the sale made under a decree of court. Both sales obtain the same result. In Rogers v. Tucker, 94 Mo. loc. cit. 352, 7 S. W. 417, it is said: "A complaint is made that the trustee in the Rogers deed of trust was not made a party plaintiff. These trustees in deeds of trust to secure debt generally have no duties to perform, save to sell the property in case of default in the payment of the debt. It is not claimed or shown that Picou, the trustee in the Rogers deed of trust, had or possessed any other power than that of making sale in case of default. He was not the proper party to foreclose by suit the deed of trust. In suits brought to foreclose the state's lien for taxes, it is not sufficient to make such a trustee a defendant. The holder of the secured debt must be made a defendant; otherwise, the deed of trust is not foreclosed, and this because the holder of the secured debt is the real party in interest. Stafford v. Fizer, 82 Mo. 388; Bank v. Grewe, 84 Mo. 478. This is but a suit to have the Rogers deed of trust declared a prior lien, and we can see no reason for making the trustee a party to the suit. He was not a necessary party." Now, bearing in mind that section 2829, R. S. 1909, by direct reference incorporates therein section 2828, supra, much light is thrown upon the question, by the opinion of Valliant, J., in State ex rel. v. Evans, 176 Mo. loc. cit. 316, 75 S. W. 915, whereat he says: "The proceeding there contemplated deals with no uncertain parties and no equivocal titles. The parties are the mortgagee on the one side and the mortgagor and the man in possession on the other; the one holding the legal title with a defeasance, the other holding the equity of redemption and the possession. The only duties of the court are to ascertain the amount due on the mortgage debt and pass judgment that the property be sold for the amount so ascertained and that execution issue for the balance, if any, against the mortgagor's other property." He was discussing section 4342, R. S. 1899, which is section 2828, R. S. 1909, which we [2] But in addition to this, be it said, the defendant in this case did not raise the question either by demurrer or answer. He is in no position to raise it now. [3] II. It is urged that Bert Kaster, the wife of the defendant, should have been made a party defendant. If there were defects of parties plaintiff or defendants, such should have been raised either by demurrer or answer; otherwise, the question is waived, and cannot be urged in this court. The question was nowhere raised below. It is an afterthought in this court. In the recent case of Rideout v. Burkhardt, 255 Mo. loc. cit. 124, 164 S. W. 508, it is said: "The only remaining proposition urged by appellants is that A. Kuns, trustee in the deed of trust executed by appellants, was a necessary party, and, since he is not made a party, there is a defect of parties defendant. As to this proposition, it is sufficient to say that, appellants having failed to raise the point either by demurrer or answer in the trial court, the point is deemed to have been waived. R. S. 1909, § 1804." What is here said applies with equal force to the trustee, as indicated in the close of our point 1, supra. [4] III. The answer upon which the case was tried was an amended answer, and was verified by affidavit, and it is urged that it in effect was a non est factum plea. In this answer there is a general denial, but nowhere in it is there a specific averment that the defendant did not in fact sign such note. On the contrary, the remainder of the answer proceeds upon the theory that the defendant did sign such note, but was mentally incapacThe whole defense was itated at the time. conducted upon that theory. During the whole trial defendant sat mute, and never took the stand to deny his signature to the note. He was not a witness in his own behalf. By proper legal action he had been determined to be a person of sound mind long before the trial. His failure to testify to the salient things contained in his answer casts suspicion, at least, upon the bona fides of his claims. Kame v. Railroad, 254 Mo. loc. cit. 195, 162 S. W. 240; Bryant v. Lazarus, 235 Mo. loc. cit. 612, 139 S. W. 558; 16 Cyc. 1062. [ 240 Mo. loc. cit. 306, 144 S. W. 839; R. S. Of whether the signature to the note was his 1909, § 2818. signature the defendant had peculiar knowledge. Whether he secured the consideration for the note was within his peculiar knowledge. Yet, with the latter question fully within his answer, he stood mute throughout. But the foregoing is but preliminary to the question which appellant urges. The plaintiff offered the deed of trust, and the note, and rested his cause. The defendant then placed upon the stand a number of witnesses in an attempt to show that he was mentally incapacitated at the time of the execution of these instruments, and that plaintiff had knowledge of his condition. We use the words "in an attempt to show," supra, advisedly and purposely. He nowhere attempts to show that his signatures to the two instruments were not genuine. He proceeds throughout on the theory that they were genuine, but not binding, because of his mental incapacity. The note introduced was the note described in the deed of trust, and the deed of trust was duly acknowledged before a notary public. Upon the close of defendant's evidence, the trial court refused to allow plaintiff to introduce evidence upon mental capacity, stating that defendant's evidence failed to show mental incapacity, and entered judgment for plaintiff as heretofore stated. Now, when the deed of trust was offered, the following occurred: "By Mr. Campbell: Plaintiff offers in evidence Plaintiff's Exhibit A, being the deed of trust in suit. "By Mr. Jayne: Defendants object to the introduction of Plaintiff's Exhibit A, for the reason under the pleadings it is irrelevant and incompetent. "By the Court: Objection overruled. "(To which ruling on the part of the court, the defendants, by counsel, then and there duly excepted at the time, and still excepts.)" The deed of trust, when in evidence, furnished proof of the fact that the note therein described was signed by the defendant, because there was such recitation in the deed of trust over the signature of the defendant. The certificate of the notary as to defendant's signature to the deed made the deed evidence of all the facts recited therein. Among the recited facts was that he had signed and delivered this note to plaintiff. This made a prima facie case for the plaintiff. [6] In addition to this the objections to the introduction of these instruments are not specific, and insufficient to raise the point made here. The point made here is that plaintiff should have proved the signatures. Such objections should have been made to the trial court. Those made are insufficient to raise the point. Williams v. Williams, 259 Mo. loc. cit. 250, 168 S. W. 618. In that case it is said: "The above was not a sufficient objection upon which to base error. An objection to a question should be specific, so that the trial court may have a chance to pass upon the exact point which is intended to be urged. Kinlen v. Railroad, 216 Mo. 145; O'Neill v. Kansas City, 178 Mo. 91; Schmidt v. St. Louis Ry. Co., 163 Mo. 645; Primm v. Raboteau, 56 Mo. 407." In the instant case the objections made should have pointed out to the court that proof of signatures had not been made. The objections are in the most general language. A trial court would have to think long before (if ever) he would conclude that the real objections were no proofs of signature had been made. Trial courts are entitled to know the real objections to the introduction of evidence, and cannot be ambushed by such general language as here used. IV. We are asked (in a general way) to read the record from pages 30 to 168, for the When the note was offered, the following evidence as to the mental condition of the deoccurred: "By Mr. Campbell: Plaintiff offers in evidence Plaintiff's Exhibit A1, being the note described in the deed of trust. "By Mr. Jayne: Defendant objects to the introduction of Plaintiff's Exhibit A1, for the reason stated. It is irrelevant and incompetent, and not proper to introduce Exhibit A1 under the pleadings. "By the Court: Objection overruled. "(To which ruling on the part of the court the defendants, by counsel, then and there duly excepted at the time, and still excepts.)" [5] Upon this status of the record the defendant now maintains that there was error in admitting these two instruments in evidence. There was no oral proof that defendant signed either instrument. The deed of trust was duly acknowledged, and no proof fendant prior to the execution of the deed of trust. We have read it with care, although the brief filed makes but little point on this evidence. There were a number of witnesses examined. Many were indefinite as to dates, and whilst they concluded that defendant was incapable of transacting business, yet when pressed for facts, the facts related were trivial. Defendant drank liquor, and many of his alleged statements were no doubt due to that fact. They all had to admit that defendant had conducted a large business, and so far as they knew a successful business. The testimony was all oral, and the witnesses before the court, and in such case we will yield to his judgment. But in addition to all this it appears that defendant's wife had procured a judgment for divorce and alimony. The alimony was (222 S.W.) rers. fairs the defendant, through his guardian, the record proper, and appellants have, under brought a suit to set aside the very deed of their head of points and authorities, succinctly trust and note here in suït. The present and definitely pointed out the reasons why they defendant, through his guardian and curator, think the court erred in sustaining the demurwas the plaintiff in that suit, and the present plaintiff, Sanders, was the defendant. Before the trial of the case there was an adjustment of difficulties. It was agreed that the wife should reduce her judgment to $3,500, instead of the $4,000 allowed her, and that the parties would close all litigation. Pursuant to this understanding, the following judgment of dismissal was entered in the suit to cancel the deed of trust and note: "By agreement, order granting change of venue is set aside and plaintiff enters nonsuit, and by agreement it is found and adjudged that Nathan Kaster executed the deed of trust mentioned in plaintiff's petition, and same is adjudged to be a valid lien on the lands mentioned in said petition, and it is ordered by the court all costs heretofore be taxed against plaintiff herein, and execution issue therefor." The reduced judgment of $3,500 was paid, and apparently all matters were adjusted until this case was instituted. The pleadings in that case are not fully set out in this record, but the substance of the petition is set out, and its allegations were substantially those of the answer in this case. It occurs to us that the question in this case has been adjudicated by this agreed judgment. But, whether so or not, there is no substance in this appeal, and the judgment below is affirmed. BLAIR, P. J., concurs. WOODSON, J., absent. GOODE, J. (concurring). In this case the omission to make the trustee a party was not raised in the court below, and cannot be raised for the first time in this court; so whether, if the point had been made below, it would have been good, need not be considered here. 2 Jones, Mortgages (7th Ed.) 1397; Shelby v. Burtis, 18 Tex. 644. 2. Usury 127-0wner of securities contracting with pledgor not to be personally liable not in privity, and entitled to raise question of usury. assigned their bonds to a bondholders' committee, empowering the committee to pledge the bonds, but expressly stipulating that the bondholders should not be personally liable on any loan, the bondholders could not recover the securities, when pledged, from the pledgee on the ground that the loan made was usurious, under the rule that the plea of usury is a privilege personal to the debtor or his privies, having, in effect, cut off their privity by their agreement, turning over the securities to the committee with plenary power and disclaiming personal liability on any contract for a loan. Where bondholders of an insolvent railroad 3. Usury 11(1)-Pleading held insufficient as not showing time that loan, for which commission was paid, had to run. Usury was not sufficiently pleaded, where the only allegation of fact as to a $50,000 loan as to which usury was charged was that there was paid a commission of $1,000 and interest at the rate of 7 per cent. and the length of time the loan was to run was not stated; for mere conclusions are not sufficient, and the pleadings should show that the length of time the loan was to run was not such that, even with the $1,000 commission, the actual rate of interest would not exceed the legal rate, 8 per cent. 4. Usury 92-To recover property pledged to secure loan usurious only in part, the valid portion of loan must be tendered. Railroad bondholders could not recover from pledgee on ground of usury securities which had been pledged by bondholders' committee, as authorized by plaintiffs, where one of the loans for which the securities were pledged was not usurious, but was a valid lien ers did not tender the amount of such loan, but upon the securities, and the plaintiff bondholdmerely offered to pay their pro rata share; the pledgee having the right to hold all the security until the payment of the debt. 5. Account 4-No action lies for accounting by bondholders against committee, in absence of showing of insolvency. Suit for accounting by railroad bondholders ST. PAUL FIRE & MARINE INS. CO. et al. against bondholders' committee, on the ground v. AMERICAN TRUST CO. et al. 1. Appeal and error 719(4)-Appeal from judgment sustaining demurrers not dismissible because of absence of tormal assignment of errors. Plaintiffs' appeal from judgment following the sustaining of demurrers to the petition will not be dismissed because of lack of formal assignment of errors, where the case is one on the committee violated their duties to the bondholders' damage, held not to lie, in the absence of a showing of insolvency; there being a remedy at law. Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge. Action by the St. Paul Fire & Marine Insurance Company and others against the American Trust Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed. For other cases see same fopic and KEY-NUMBER in all Key-Numbered Digests and Indexes |