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eBook details

• Title: State Missouri v. Thelnor
• Author : Missouri Court of Appeals St. Louis District
• Release Date : January 12, 1972
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

This is a condemnation proceeding instituted by the State Highway Commission of Missouri in connection with the widening of U. S. Highway 66TR (Lindbergh Boulevard) in St. Louis County, Missouri. The land taken was a narrow strip abutting the westerly edge of the highway a distance of 933.33 feet. In area it constituted .435 acre. The entire tract before the taking consisted of 3.951 acres. Damages in the amount of $14,500.00 were awarded by the commissioners. After exceptions were filed, a trial in the circuit court resulted in a jury verdict in the sum of $8,900.00, some $5,600.00 less than the commissioners' award. From the judgment entered on the verdict, defendant Southern Commercial & Savings Bank, the holder of a note secured by a deed of trust on the land, has appealed. R. W. Hawkins, the trustee named in the deed of trust held by defendant bank, was not served with summons and a notice of the commissioners' award. Defendant bank contends Hawkins, as trustee, was the holder of a record title to the property and under Rule 86.03, V.A.M.R., he was an indispensable party to the condemnation action. Hence, under Rule 86.08, V.A.M.R., he should have been served a copy of the notice of commissioners' award. Rule 86.03 does require the inclusion of parties defendant who have a title appearing of record upon the proper records of the county wherein the real estate affected lies. But a trustee named in a deed of trust to secure the payment of a note obligation is not such a party. It has long been the rule in Missouri that a trustee under a deed of trust in the nature of a mortgage given to secure the payment of debt is not the holder of title to the real estate described in the instrument. The deed of trust merely creates a lien on the land while the debt remains unpaid. The grantor remains the owner of the land until entry for breach of the condition of the deed of trust. Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060, 1065(5); City of St. Louis v. Koch, Mo.App., 156 S.W.2d 1, 5(3). Appellant's contention that R. W. Hawkins, as trustee, is an indispensable party is without merit.

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