Hughes v. Winkleman

• Decision Date: 31 May 1912
• Citation: 147 S.W. 994
• Parties: HUGHES et al. v. WINKLEMAN et al.
• Court: Missouri Supreme Court

147 S.W. 994

HUGHES et al. v. WINKLEMAN et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1912.

1. APPEAL AND ERROR (§ 758)—BRIEF— ABANDONMENT OF ISSUE.

A ground set out in the bill for equitable relief, but not contended for by plaintiffs in their brief on appeal, was abandoned and not reviewable, though briefed by the defendants.

2. MORTGAGES (§ 591)—FORECLOSURE—REDEMPTION—WHAT LAW GOVERNS.

Where Missouri land is sold under foreclosure of an Iowa mortgage, no right of redemption exists as of course; such right not being conferred by the statutes of Missouri—the redemption statute of Iowa not applying.

3. MORTGAGES (§ 591)—FORECLOSURE—RIGHT OF REDEMPTION.

The right to redemption as of course from a mortgage foreclosure after decree, not existing at common law, is purely statutory.

4. MORTGAGES (§ 592)—FORECLOSURE—REDEMPTION.

A statute giving a right of redemption as of course from a mortgage foreclosure is a rule of property in the state that enacts it, but has no extraterritorial force.

5. MORTGAGES (§ 380)—CONFLICT OF LAWS—COMITY—RULE OF PROPERTY.

In case of conflict, comity between states gives way to the rule of real property in the state of the forum, including that of mortgages and their foreclosures.

6. MORTGAGES (§ 591)—CONFLICT OF LAWS—COMITY—RESIDENTS AND NONRESIDENTS.

Justice must not be sacrificed to the rule of comity; and nonresidents should be given no

greater rights than are accorded to residents of the state.

7. MORTGAGES (§ 591)—FORECLOSURE—RIGHT OF REDEMPTION—LAW GOVERNING.

Right of redemption from a mortgage foreclosure affects only the remedy, and hence depends upon the law of the forum and of the place of the property.

Appeal from Circuit Court, Clark County; Charles D. Stewart, Judge.

Action by Amanda T. Hughes against William Winkleman and another. Judgment for defendants, and plaintiff appealed. After her death pending appeal, the case was revived in the name of her heirs. Affirmed.

Felix T. Hughes, of Keokuk, Iowa, and T. L. Montgomery, of Kahoka, for appellants. John M. Dawson, Asst. Atty. Gen., and W. L. Berkheimer, of Kahoka, for respondents.

LAMM, J.

Equity. Plaintiffs' ancestor, Amanda T. Hughes, sued in the Clark circuit court to set aside a judicial sale following the foreclosure of a mortgage on, say, 1,300 acres of land in Clark county, Mo., and to redeem. Cast below, she appealed. Pending appeal, she dies, leaving plaintiffs as her only heirs. On suggestion of her death here, the cause is revived in their names. They enter their appearance and prosecute this appeal.

In November, 1904, Amanda T. Hughes, with two of the present plaintiffs, executed a note to defendant bank in the rise of $8,500, due in a year and drawing 7 per cent. interest, securing it by a mortgage in common form on the land in question, then subject to prior incumbrances, on condition that the conveyance became void if the note were paid, having also a provision for foreclosure on default. Default was made, and in 1907 suit was brought by defendant bank in the Clark circuit court to foreclose and for judgment on the overdue note. To that suit she entered her voluntary appearance. Such proceedings were had that in June of that year a decree went, foreclosing her equity of redemption, adjudging recovery on the note in the sum of $9,499.08, and awarding execution. Execution issued and a sale was made in the summer of 1907. Defendant Winkleman, being the best and last bidder, the land was knocked down to him at that public vendue and outcry under the sheriff's hammer for $10,505, and he presently received a sheriff's deed. Thereafter in December, 1907, the present suit was brought.

The bill narrates the foregoing facts, and then alleges that defendant bank and the plaintiff, Amanda T. Hughes, were at all times citizens and residents of Iowa; that the note and mortgage were Iowa contracts, and are to be construed under its laws; that under those laws Amanda T. Hughes was entitled to redeem from a sale under a decree foreclosing a mortgage at any time within one year. Predicating a right of redemption on that state of facts, the bill next goes on to complain of irregularities in the sheriff's sale. One is said to be that the land was offered in the lump and knocked down on a lump bid for an inadequate consideration of one-half its real worth. Another is said to be that Winkleman combined with other bidders to chill and depress the bidding, whereby the price was beaten down, to the injury of the mortgagor. Another is said to be that the sale was void, because advertised at the "courthouse door" in Kahoka, and no particular door was noticed, although there were four outside doors to the courthouse, one on each side. It was next alleged that Winkleman knew and had notice, by the terms of the note and mortgage, of the laws of Iowa under which the contract was made, and of the fact that the mortgage was not a Missouri, but an Iowa, contract, and that the laws of that state permitted redemption in one year. Such, in substance, is the bill.

Defendant bank answered by general denial. It seems to have no interest in the subject-matter, and why it was made a party is dark.

Winkleman answered, admitting the execution of the note and mortgage, the judgment of foreclosure, the sheriff's sale thereunder on execution, and that he bought thereat, paid his bid, and got a sheriff's deed, under which he claims an absolute title. He specifically denied averments charging that the mortgage was governed by Iowa law, or that he knew it was an Iowa contract, or that the right of redemption provided by that law governed the sale of Missouri land under a Missouri judgment of foreclosure and judicial sale, or that the price was inadequate, or that there was any agreement among bidders to chill the bidding, or that the sheriff's notice of sale was irregular and void in particulars alleged. He admits the sale was a lump sale on a lump bid, but avers (and proves) it was made in that way at the request of the mortgagor and of those representing her at the sale. There is next a plea of estoppel, in that there was a surplus at the sale, which Mrs. Hughes took down and receipted for to the sheriff.

At the trial a faint attempt was made to show grounds of equitable relief because of inadequacy of consideration, coupled with irregularities in the sheriff's sale of the sort alleged in the bill. But there was no proof of substance on any such score.

Mrs. Hughes was a citizen of Iowa; but at the time she executed the note and mortgage she was visiting in Minnesota, and the mortgage shows it was executed in that state. There is nothing to show that Winkleman (we infer from the record a citizen of Missouri) knew she was a citizen of Iowa, or knew what the laws of Iowa were, as alleged in the bill. Neither the mortgage, the note, nor the record of the foreclosure proceedings disclosed any such information. The mortgage does show that the mortgagee, the First National Bank of Boone, was a citizen of Iowa.

Iowa statutes were introduced, reading:

"Sec. 4045. Redemption—By Debtor—Appeal or Stay. The debtor may redeem real property at any time within one year from the day of sale and will, in the meantime, be entitled to the possession thereof, and for the first six months thereafter such right of redemption is exclusive; but no party who has taken an appeal from the superior or district court, or stayed execution on the judgment, shall be entitled to redeem."

"Sec. 4289. Judgment—Sale and Redemption. When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution."

The allegation in Winkleman's answer that the sale created a surplus, and that Mrs. Hughes took down that surplus, was sustained by the proof.

1. The issues on appeal.

We may with profit fetch a small compass on the issues. It will be observed that the bill is framed on two theories, one a redemption as of course under the statutes of Iowa, the other such irregularities in the sale as made it voidable, and invoked relief on general equitable principles. Attending to the latter theory, it is passed sub silentio, and is not pressed in the brief of plaintiffs' counsel. That silence, when brought to book, is tantamount in a forum of reason to an admission of a failure of proof (which was so), and to an invitation to ...