
    Jones v. Real Estate Saving Institution, Appellant.
    
    Deed of Trust Sale: suit to redeem : statement or account : interest. In a suit, by tbe grantor in a deed of trust against the beneficiary to enforce an agreement for the redemption of improved reabestate, purchased by the latter at a sale under the deed, and subsequently sold by him to a third party, the court having found that the plaintiff was entitled to recover; Held, ¡that an account should'be stated charging defendant with the rents collected by him while he held the property, and its value at the date of the second sale, and crediting him with all taxes and necessary and reasonable repairs put upon the property, and with other necessary expenses incurred in its management, together with the amount due on the original indebtedness, and upon the balance so ascertained to be due at the date of the second sale, interest should be allowed from that time.
    
      Appeal from St. Louis Court of Appeals.
    
    
      Martin $• Lackland for appellant.
    
      John F. Darby for respondent.
   Henry, J.

In 1862 plaintiffs owii.ed a lot of ground in the city of St. Louis, bounded north by Jefferson street, west by Eleventh street, east by Tenth street, and south by an alley. There are five two-story brick houses and three frame houses on the lot. The improvements were made and the land bought partly with the money of the plaintiff, Julia Jones, but the title was in her husband, Lewis Jones, her co-plaintiff'. On the 1st of December, 1862, Lewis Jones borrowed of defendant $5,650, for which he gave his note, payable three years after its date, with interest from its maturity at ten per cent, per annum, and six semi-annual interest notes, each for $282.50, all secured by a deed of trust convoying the above described property to Jno. M. Krum. Porter & Wolf afterwards — until about 1867 — and then Levering & Webster wore the agents of plaintiffs, to collect their rents, pay taxes, &c. These agents collected the rents, and from time to time, deposited the same with defendant, to be applied in payment of the interest notes. Marcus A. Wolf had a judgment against Lewis Jones for $885 and costs, and was about to have the property above described sold on execution, when,'by an arrangement between plaintiffs and defendant, the defendant procured an assignment from said Wolf of said judgment, to the defendant, and afterwards-purchased the property at a sale under an execution, issued on Wolf’s judgment. The plaintiffs had money on deposit with defendant, within $40 or $50 of the amount of said judgment, with which said assignment was procured.

After this purchase, in 1869, the defendant had the property advertised for sale by the trustee, Jno. M. Krum, to satisfy the indebtedness 'secured by the ’deed of trust to Krum, and in their petition, plaintiffs alleged -that there was an agreement between them and the . defendant tbat the latter should purchase the property and hold it until the satisfaction of their debt out of the rents of the property, and then convey it to Julia. In November, 1872, the defendant sold and conveyed all of said property to Henry Ligby, for the consideration of $10,000, and the plaintiffs charged in their petition that Ligby purchased with notice of their equity, and asked tó be permitted to redeem said land, and for general relief.

On the trial, the court submitted to a jury, the following issues :

First. Lid the Real Estate .Saving Institution purchase the property described in the petition, at sheriff’s sale, and agree with the plaintiffs, at the time of said sale, to hold said property in trust for them, until the rents of the same should pay the debt mentioned in the petition, or until said property should be otherwise redeemed by the plaintiffs ?

Second. Lid the Real Estate Saving Institution purchase the property described in the petition, at trustee’s sale, and agree with the plaintiffs, at the time of said trustee’s sale, to hold said property in trust for them until the rents of the same should pay the debt mentioned in the .petition or until said property should be otherwise redeemed by .the plaintiffs ?

Third. Did defendant, ITenry Digby, prior to his purchase of the property in question, from the said Real Estate Saving Institution, have any notice of the alleged private agreement or understanding between said institution and plaintiffs, as charged in the- petition?

To the first and second issues, the jury said “ Tes.” To the third issue, they- said- “ No.”

"With -the Digby branch of the case, we have now nothing to do. That controversy lias been determined by us in another cause, at this term — Digby v. Jones and Wife, ante p. 104. The circuit court, upon these findings, gave judgment for Digby, and holding -the Real Estate Saving Institution., as a trustee of the, property for the plaintiffs, -gave judgment against it for-$13,000. Defendant appealed •to-the Court of -Appeals, where the decree of the circuit court was set aside, and a decree entered in favor of plaintiffs against defendant for $10,917, with, interest, on that amount from 17th' November, 1872, at six per cent, per annum. From that j udgment, defendant has appealed to this court.

Wo are not inclined to disturb the findings of the court and the jury, on the issues submitted. There was conflicting evidence, and no such preponderance on either side as would warrant us in disturbing the verdict, whether on those issues it had been for plaintiff or defendant. Wo shall affirm so much of the decree as finds and holds the defendant as a trustee for plaintiffs, from the date of their -purchase under the execution sale, 20th clay of February, 1869, to the date of the sale made by the defendant to Digby in November, 1872. It is clear from the evideuco of Lewis Jones, and Mrs. Robertson, and Naylor, that in -1869 there was a considerable balance due defendant from Jones, on the note secured by the deed of trust.

Mrs; Robertson says she was present at a-conversation between Lewis Jones, Mrs. Jones and Naylor, shortly after the trust sale ; that when Naylor informed them that the property had been sold for $10,000, Lewis Jones asked what they would do with the overplus? Jones testified that he proposed to raise money to pay off the debt, if they would be willing to let him have the property back. Naylor testified that at the date of. the sale, in 1869, $5,500 were duo on the note. In the decree of the circuit court there is nothing said of this indebtedness, and for aught that appears upon the face of the decree, it was entirely ignored. The evidence in regard to the value of the property would also indicate that the circuit court took no account of that indebtedness, in the decree .it rendered. Certainly Jones and wife were not entitled to the value of the property without paying whatever remained unpaid of the note. "What that amount was, it is impossible to ascertain, from the evidence preserved in the bill of exceptions. ¥e might approximate the rents received by defendant from 1869 to 1872, but it would be unsatisfactory and might do great injustice to one or the other of the parties. We hold that Jones and wife are entitled to the rents received by the defendant for this property, from the 20th of February, 1869, to the date of the sale to Digby, for during that time defendant was a trustee for plaintiffs; that from that amount should be deducted necessary reasonable repairs, taxes and necessary expenses, incurred by the defendant in the management of the property, so that defendant shall be charged only with the net amount realized from rents; that plaintiffs are also entitled, against defendant, to the value of the property when sold to Dig-by ; that from the aggregate of not rent and the value of the property, defendant is entitled to a deduction of the amount of said note, which is unpaid, and on the balance which may be found in favor of plaintiffs interest at 6 per cent, per annum, should bo allowed from the date of the sale to Digby. Any moneys received by defendant, prior to the 20th of February, 1869, to be so applied, are of course, to be treated as payments on said notes. Tbe judgment of the Court of Appeals is reversed and the cause remanded to the circuit court, with directions to have an account taken, to ascertain the several amounts above indicated, including the value of the property at the date of the sale to Digby, and otherwise to proceed with the cause in conformity to this opinion.

All concur, except Hough, J., not sitting.

Reversed.  