Opinion
No. 21748.
November 3, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
T. D. Judy, Kansas City, for appellants.
W. Ernest Christen and David R. Derge, Kansas City, for respondents.
Plaintiffs, William Hughes and his wife, Claire R. Hughes, were denied relief in the court below and have appealed. Their petition alleged that they purchased from defendants Mary B. Hughes and John P. Hughes (not related to plaintiffs) on or about January 1, 1950, a residence in Kansas City, Missouri, known as 7421 Bellefontaine; that the purchase price was $7000; that the sum of $250 was paid to defendants when the contract was executed on November 21, 1949, and an additional sum of $250 when the deed was delivered; that the balance of the purchase price was represented by a promissory note payable at the rate of $50 per month, said note being secured by a deed of trust on the property, defendant, Mary B. Hughes being the payee in the note and defendant, John P. Hughes, the trustee in the deed of trust; that at the time said house was purchased by plaintiffs it was being repaired by defendants who agreed to complete said repairs within a period of 30 days, but did not so so; that defendants told plaintiffs at and prior to the time they purchased said property that the house "was regularly built and was lathed and plastered in a first-class workman-like job"; that these statements were untrue and were relied upon by plaintiffs; that after plaintiffs discovered the falsity of said statements they refused to make payments on the note "until said defendants would complete the said work and correct the misrepresentations by them so made"; that on May 23, 1950, defendant, John P. Hughes, as trustee, caused the property to be sold under the deed of trust and at the sale defendant, Mary B. Hughes, became the purchaser; that plaintiffs gave the statutory notice of their intention to redeem and the bond tendered by them was approved; that plaintiffs on several occasions offered to pay defendants "all back payments, interest and costs, and taxes, and any other statutory expenses covered by said bond," but defendants refused to accept the same and, on the other hand, demanded payment of the entire principal sum stated in the note together with interest thereon.
The prayer of the petition was that defendants be compelled "to accept all the monies which the court finds due to these defendants, and to compel said defendants to make a deed of redemption back to these plaintiffs, and for such other and further orders to which this court may seem just and proper." Defendants answer was a general denial.
This being an equity case, it is heard de novo by this court. It is our duty to render such judgment as we find should have been rendered by the trial court giving due deference to the findings of the court below.
The note which plaintiffs executed on January 14, 1950, provided that "if default is made in the payment of any installment when due, then all the remaining installments shall become due and payable at once." The statute, section 443.410 RSMo 1949, V.A.M.S., governing the right to redeem after foreclosure provides that the grantor or his assignee "shall within said year pay the debt and interest * * *." There is no evidence that plaintiffs at any time after the foreclosure sale on May 23, 1950, offered to pay the full amount of the debt and interest represented by their promissory note. In fact, at the time of the trial which took place on September 20, 1951, plaintiffs only offered to pay the delinquent monthly payments and the cost of the foreclosure sale. Clearly, any right of plaintiffs to redeem under their notice and bond was lost by their failure to comply with the above statute.
As to plaintiffs' claim that defendants were guilty of fraud, the evidence is in sharp conflict. According to defendants' evidence they spent over $3700 re-modeling the house and placing it in a livable condition; that after moving into the house, the only complaint plaintiffs made was that the furnace would not heat properly, and that this condition was corrected by defendants. The only claim made by plaintiffs relative to hidden defects was that defendant, John Hughes, had represented to them that the house had been lathed and plastered and water-proofed. Defendant, John Hughes, denied that he had told plaintiffs that laths and plaster had been used; that he had used plaster-board which, he stated, is recognized as good construction practice and approved by the F.H.A. He also testified that the basement had been water-proofed and in an approved manner.
A significant fact is that plaintiffs did not file their petition in the instant case until May 22, 1951, or one day short of the statutory redemption period. The contract of sale was entered into on November 21, 1949. Plaintiffs moved into the house shortly thereafter. They were still occupying it at the time of the trial. As asserted by defendants, a strong inference can be drawn from the evidence that it was plaintiffs' intention to remain in the property as long as the law would allow them to after making the original down payment.
In view of the fact that the transcript discloses a conflict in the oral testimony, we feel that we should defer to the chancellor's finding because of his better opportunity to judge the credibility of the witnesses.
The judgment is affirmed. All concur.