rules of liberal construction apply to remedial statutes “provided such interpretation is not inconsistent with the language used ... resolving all reasonable doubts in favor of applicability of the statute to the particular case”
How later courts described this case
- rules of liberal construction apply to remedial statutes “provided such interpretation is not inconsistent with the language used ... resolving all reasonable doubts in favor of applicability of the statute to the particular case”
- "All doubt will be resolved in favor of the right to redeem.”
Written by the judges who cited it.
Distinguished
Distinguished by Metro Auto Auction v. Director of Revenue, 1986 Mo. LEXIS 267 (1986)
Id. at 106. LeFevre is distinguishable because in section 407.536 there are no ambiguous words for this Court to interpret.
The opinion
WELLIVER, Judge,
dissenting.
I respectfully dissent.
Section 443.410, RSMo 1978, clearly contemplates that the right of redemption vest alternatively rather than concurrently. It grants that right to “the grantor in [a] mortgage deed of trust or his heirs, devi-sees; executors, administrators, grantees or assigns.” Id. (emphasis added). Because heirs, devisees, executors, and administrators are merely representatives of a deceased grantor, they are for the purpose of redemption but the alter ego of the grantor. The statutory language places grantees and assigns within that same category. Reduced to ultimate simplicity, as regards this case the statute grants a right of redemption to the grantor or his grantees or assigns. The principal opinion, through the exercise of some notion of equity, would grant that right to both the grantor and his grantees or assigns. Such a construction tortures the statute. Our power to construe statutes is not a power to rewrite them, and the belief that equity is necessary in a particular case has never been recognized as a valid basis for the expansion of that power. I deem citation of authority for these propositions unnecessary.
The record before us leaves as many questions unanswered as it answers and, at best, consists only of bits and pieces that must be tediously gleaned from the official record, the briefs, and the oral argument. It is most notable for the paucity of known facts and the glaring absence of facts that could shed light on the true equities of the parties.
The Burnses purchased the property in question from Meadows & Meadows, Inc., which carried back a first deed of trust securing payment of the principal sum of $307,500. The Burnses then applied to Phoenix Mutual Life Insurance Company for a loan of $450,000. As a condition precedent to obtaining the loan, the Burns-es were required to obtain from Meadows an agreement subordinating its deed of trust to that of Phoenix. The subordination agreement recited only nominal consideration. The Phoenix deed of trust thus became the first deed of trust, and the Meadows deed of trust became the second. The Burnses then sold the property to Pear-ey, executing a simple warranty deed containing no reservations and no assumption agreement. The deed makes the usual recitation that the property is free and clear of all encumbrances. The total recited price of the property was $1,041,152. One sentence in the contract for sale of the real estate, which apparently was unrecorded, constituted Pearey’s agreement to assume the Phoenix and Meadows deeds of trust. On January 2, 1980, Mr. and Mrs. Pearey executed a note to the Burnses for $133,600 that was secured by a third deed of trust on the property. There was no recitation in the third deed of trust that it was subject to the two prior deeds of trust. On January 8,1980, the Burnses unconditionally assigned and discounted the note to the Fidelity State Bank of Kansas City, Kansas, for the recited sum of $100,000. There was no indication that Meadows, the Fidelity State Bank, or the Burnses requested notice of foreclosure proceedings pursuant to § 443.-325, RSMo 1978. Neither is there an indication in the record that either Meadows or the Fidelity State Bank had actual notice of the foreclosure sale.
The only bidder at the foreclosure sale was Phoenix, which bid approximately $520,000. The third deed of trust, which was unconditionally assigned to the Fidelity State Bank, was released of record August 10, 1982, following the foreclosure proceed *110 ings of November 1981. The record is silent as to whether, or by whom, the deed of trust was satisfied or as to why it was released.
Nothing indicates the true present value of the property.
Pending in the Circuit Court of Jackson County is a suit, No. CV82-02874, in which Phoenix seeks to recover a deficiency from the Burnses and damages on the redemption bond. Given the fact that the security for the $450,000 note brought $520,000 at the foreclosure sale, it is difficult to visualize the possibility of a deficiency judgment. Two suits are pending in Daviess County. In the first, No. CV381-179-CC, the Burns-es seek contract damages of $841,000 against Pearey. In the second, No. CV381-181-CC, Meadows has moved to set aside an adverse summary judgment and to file an amended petition seeking, among other things, to set aside the subordination agreement on grounds of fraud and lack of consideration and to recover $500,000 in damages from Phoenix. The amended petition alleges that Phoenix, through its attorneys, defrauded Meadows into executing the subordination agreement. At oral argument, however, we were told by Phoenix’s attor-" ney that the Burnses procured the subordination agreement.
On the confused facts before us, I am hard pressed to find the clean hands that would justify equitable relief. I fear that the Court is making an arbitrary selection, under the guise of equity, of who should be allowed to reap the benefits, if benefits there be, that may be inherent in this foreclosure. We disserve the Missouri financial industry and all who desire to borrow money on real estate when we cloud the existing clean and expeditious foreclosure procedures surrounding our lien-type security instruments with the unnecessary delays of twelve to fifteen months here contemplated. The court of appeals did not err in granting its writ of prohibition.
The writ of prohibition should be made absolute.