Property Law

Editor:
Paul F. Sherman, Esquire

A party’s inviting the error which is then complained to be an error for appeal purposes cannot obtain such relief on appeal. Percy’s High Performance, Inc. v. Krough, et al., No. 32121 (Mo. App. S.D., October 25, 2013), Sheffield, J.

On March 1, 2008, Krough and Baker entered into a contract for deed with Percy’s to purchase a home from Percy’s in Osage Beach for $305,000, payable $1,000 down then $1,710/month interest only from April 1, 2008 through October 1, 2009, when the remaining principal balance of $304,000 was due. Krough and Baker took possession and looked for better financing, but an October 5, 2009 appraisal for $235,000 resulted in denial of their loan application so the $304,000 payment was not made when due and they vacated the home. Percy’s filed suit for breach of contract seeking $304,000. After bench trial the trial court found for Percy’s and awarded $69,000 in damages ($304,000 - $235,000), plus Percy’s $8,000 in attorney fees.

At issue was whether trial court erred in awarding actual damages. Krough and Baker at trial argued the petition did not plead specific performance, but on appeal argue specific performance was the relief sought. At trial, when Percy’s was asked if specific performance was being sought defendants’ counsel objected. When the question was rephrased, and that objection renewed by defendants’ counsel, this time the court overruled the objection. On appeal, Krough and Baker are denied for they invited the errors of which they now complain on appeal.

As for Krough and Baker’s against the weight of the evidence argument on appeal, this measure of damages was for the fact finder to decide and was within the range of evidence presented. Apparently several appraisals came into evidence without the appraisers testifying, hearsay which was admitted without objection, so the fact finder has a range to consider and did.

Regarding attorney fees, the written contract so provided. Accordingly, to the trial court’s award of attorney fees was added attorney fees for the appeal to be determined by the trial court on remand with directions.

Held: Affirmed.


Note and deed of trust executed at one time are to be construed together to determine parties’ intentions. Richard v. Wells Fargo Bank, N.A., et al., No. 98712 (Mo. App. E.D., October 22, 2013), Odenwald, J.

Plaintiff purchased property in 1995, taking title with her husband Paul as tenants by the entirety. On February 28, 2005 Paul refinanced the property borrowing $154,400 from Wells Fargo with a promissory note that did not include Elizabeth. Elizabeth’s initials do appear on the deed of trust securing the note and she did sign page 17 beside the word “Borrower.” On page 18 of the deed of trust Elizabeth’s initials appear with a notary seal identifying her as “Non-Borrower.’ Paul died August 27, 2008, and Elizabeth made two note payments after his death before Wells Fargo declared default. Non-judicial foreclosure occurred October 5, 2009. Losing the property at foreclosure, Elizabeth then file a nine-count petition claiming the deed of trust invalid. Claiming the deed of trust valid, Wells Fargo moved for partial summary judgment on Count I (declaratory judgment), Count II (wrongful foreclosure) and Count IV ) unlawful detainer), all sustained by the trial court, later dismissing all remaining counts for failure to prosecute.

On appeal, Elizabeth claims the deed of trust ambiguous, identifying her both as “Borrower” and “Non-Borrower” and containing material alterations.

Finding the deed of trust not ambiguous, noted is that the note and deed of trust are to be construed together and harmonized, if possible. Elizabeth signed and initialed the deed of trust – therefore both signatures required to grant the security interest were obtained. The deed of trust language itself defines “Borrower” to be both Paul and Elizabeth. The deed of trust itself was not materially altered so as to change the rights, interests or obligations of the parties. Therefore, Elizabeth was a Borrower.

Held: Summary judgment affirmed.


Private nuisance, while fact-intensive, cannot state a claim against one not in use or occupancy of the property claimed about. Bush v. City of Cottleville, et al., No. 99688 (Mo. App. E.D., October 22, 2013), Van Amburg, J.

Bush owns a residence in an unincorporated area of St. Charles County. Aiello Group owns adjacent operating a cigar bar with heated outdoor bocce ball courts. Aiello obtained various permits/variances to grow and build, adding a liquor store.

On November 6, 2012 Bush filed suit in the circuit court alleging the Cottleville Board of Adjustment (BOA) wrongly granted the permits and variances to Aiello. The trial court dismissed as an improper collateral attack time barred under § 89.110, RSMo.

On de novo review testing the adequacy of Bush’s petition. However, cites no “standard regulation, or ordinance” that was violated – a necessary element to any claim under § 89.491, RSMo.

Bush’s claim of private nuisance, typically fact-intensive, must fail as against the City or BOA because neither use or operate the property complained about.

Held: Reversed and remanded as to dismissal of Aiello, affirmed dismissal as to City and BOA.


Plain reading of the statute, § 242.350, requires plan approval by the district for the county to rebuild a bridge without regard for cause or necessity of the rebuild or fact that county had built same in the first place. New Madrid County v. St. John Levee and Drainage District, No. 32622 (Mo. App. S.D., October 16, 2013), Sheffield, J.

This is a declaratory judgment action interpreting § 242.350 treated as if tried on stipulated facts. New Madrid County built in 1975, and has since maintained, the Sugar Tree Bridge. In May 2011, when the U.S. Army Corps of Engineers activated a flooding the wooden deck of the Sugar Tree Bridge was washed away. Then, in June of 2012, the Consolidated Drainage District of Mississippi County (“Consolidated”) – a separate draining district – removed the steel pilings remaining of the Sugar Tree Bridge without the knowledge of the St. John Levee and Draining District (“St. John”). Later, St. John widened the ditch underneath, damaging the road and what was left of the Sugar Tree Bridge. New Madrid County had intended to repair the bride before St. John widened the ditch. St. John wouldn’t approve the bridge if it didn’t span the widened ditch. The trial court ruled the county could reconstruct the Sugar Tree Bridge without St. John’s approval of the plans, interpreting § 242.350.1 to so allow and this appeal follows.

St. John’s plan approval is required before the county can rebuild the Sugar Tree Bridge.

This was a bridge replacement – a new bridge – which requires the District’s approval if a bridge is being built. What role St. John played in its destruction has no bearing, the District’s prior approval of county’s plans to rebuild is required by statute. Plain reading required such approval.

Held: Reversed.


Tenancy by the entirety interest requires the execution by both husband and wife to convey that special interest because each spouse is seized of the whole. Federal National Mortgage Association v. Pace, Nos. 99061 and 99062 (Mo. App. E.D., October 1, 2013), Mooney, PJ.

On June 20, 2002, the Paces took title to their home in Olivette, Missouri by Special Warranty Deed to “Harvey L. Pace and Christine Pace, husband and wife.” One week later, husband Harvey signed a promissory note for $197,000 to purchase the property secured by a deed of trust to First Horizon Home Loan Corporation, later acquired by Federal National Mortgage Association (FNMA). Both documents only identified the husband as the grantor and borrower, and only he signed the documents. The wife, Christine, did not sign as borrower and played no role in acquiring the property except that she was present at closing when husband signed note and deed of trust and she then signed a document before a notary entitled “Assent to Execution of Deed” on June 28, 2002. FNMA obtained the property at foreclosure on September 2, 2010 after husband defaulted, then sued the Paces for unlawful detainer. FNMA then filed this action to quiet title, or in the alternative for an equitable lien. Both FNMA and the Paces moved for Summary Judgment, which the trial court granted in favor of FNMA, calling the deed of trust a first priority lien which extinguished the Paces’ interest at foreclosure.

On appeal, the Paces claim the FNMA deed of trust was void and deny FNMA’s claim that the Paces’ consent to judgment on the unlawful detainer ratified the lack of wife’s signature. Ratification requires knowledge of all material matters and wife testified she believed the property was owned by her husband alone the prior eleven years. Thus, without her signature the deed of trust did not convey a valid lien.

The only borrower identified is Harvey. However, conveyance to a husband and wife is presumed to create a tenancy by the entirety where each spouse is seized of the whole. The deed of trust by only one of two tenants by the entirety conveys nothing.

In the alternative, FNMA argued it had an equitable lien. However, such an obligation necessarily involves a duty or obligation owed by one to another and property to which that obligation attaches, intending the property serve as collateral. Again, FNMA fails, the wife owed FNMA nothing.

Held: Reversed.


Ownership or title validity questions do not present in the limited statutory action for unlawful detainer and are not valid defenses, interpreting and applying § 534.210, RSMo. Federal National Mortgage Association. v. Wilson, No. 98885 (Mo. App. E.D., July 23, 2013), Quigless, J.

Fiona Wilson (“Fiona”) lost her home to Federal National Mortgage Association (“FNMA”) at foreclosure, but failed to vacate. FNMA then filed an unlawful detainer to have her removed. The trial court ruled against FNMA, finding Fiona had not defaulted and that Fiona’s right to possession was superior to FNMA for FNMA’s failure to comply with § 534.030 proper notice requirements, no written demand.

On appeal FNMA argued it had the better right to possession, the deed of trust did not provide Fiona a superior right and that its notice was adequate. The appellate court agreed.

Wells Fargo had the debt on which Fiona made payments until about March 29, 2011, then on May 26, 2011 Wells Fargo returned $1,366.23 to Fiona for “misapplication reversal” for December 2010 through March 2011. On June 29, 2011 Wells Fargo foreclosed. FNMA then purchased the property at the sale by deed executed July 13, 2011 and recorded July 14, 2011. FNMA then sent Fiona two letters (not certified or registered or personally served) addressed “Current Occupant” for eviction purposes, but Fiona refused to leave.

Regarding the better right to possession, FNMA argued whether Fiona was in default or not is statutorily prohibited in unlawful detainer by operation of § 534.210, RSMo. Unlawful detainer is a limited statutory action that does not address ownership or title validity. Fiona’s default cannot be considered in the unlawful detainer action and is not a defense. She either enjoins the foreclosure sale or brings a separate action challenging title and seeking a stay of the unlawful detainer. Any purport of lease by Fiona was extinguished by the foreclosure itself. FNMA is not statutorily required to send Fiona a written demand. Fiona received notice of foreclosure through the foreclosure process. FNMA had met its burden and was entitled to judgment against Fiona on the unlawful detainer action.

Held: Reversed and remanded.