Bensieck v. Cook
| Decision Date | 23 May 1892 |
| Parties | Bensieck v. Cook, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
H. D Laughlin for appellant.
(1) The deed from Sartore & Dungey to Cook was a warranty deed except as against the Schopp mortgage. Cook did not assume the payment of that mortgage. If, therefore, Sartore & Dungey had paid the mortgage -- as they should have done -- there can be no question that Cook's title would have been complete. Jones on Mortgages [4 Ed.] sec. 864; Johnson v. Johnson, 81 Mo. 331. (2) Instead of paying the mortgage which they executed to Schopp, Sartore & Dungey permitted the property to be sold under that mortgage, and at the sale they became the purchasers. That amounted simply to a payment of the mortgage and left Cook's title clear. Jones on Mortgages [4 Ed.] sec. 864; Lappen v. Gill, 129 Mass. 349; Ryer v. Gass, 130 Mass. 227; Bank v. McKenney, 78 Mo. 442; Strong v. Converse, 8 Allen, 557-559; Butler v. Seward, 10 Allen, 466; Bemis v. Call, 10 Allen, 512. (3) "If one who has conveyed land by deed containing covenants of warranty afterwards purchases a mortgage upon the property which existed at the time of his conveyance, there is a merger of it." Jones on Mortgages, sec. 864; Mickles v. Dillage, 15 Hun (N. Y.) 296. (4) "If the owner of lands acquires a tax title to the same under a sale made when he was owner of the property, his purchase of the tax title is a redemption from the tax sale, and a deed to him of the tax title transfers no new title to him, but his title merges in his title to the lands." Gould v. Day, 94 U.S. 405. (5) Sartore & Dungey were the purchasers at the trustee's sale, under their own mortgage, for $ 5,301, and the trustee should have made the deed to them. Bush v. Macklin, 9 S.W. 420. (6) It is true that a bid may be transferred to another, but any equitable rights or liens acquired by third persons against the original purchaser before the assignment of the bid are protected, and such a transfer is always subject to any equitable rights or liens of third persons as against the original purchaser which may have become vested before assignment of the bid. Jones on Mortgages, sec. 1652; Proctor v. Farnum, 5 Paige (N. Y.) 619; Rorer on Judicial Sales, sec. 145; Culver v. McKeown, 43 Mich. 322-326; McClure v. Englehardt, 17 Ill. 47; Splahn v. Gillespie, 48 Ind. 397. (7) The assignment of a mortgage to the wife of the mortgagor operated at common law as a discharge of the debt. Wright v. Patterson, 45 Mich. 261. (8) Where a mortgagee brings an action at law on a mortgage debt and sells the mortgaged property under execution and buys it in, the property would still be subject to the mortgage, and all the parties would be in the same condition as before. Young v. Ruth, 55 Mo. 515. (9) A trustee is the agent of both parties, debtor and creditor, and his duties should be performed with the strictest impartiality and integrity. Sherwood v. Saxton, 63 Mo. 78. (10) The trustee's deed to Bensieck conveyed only the interest Sartore & Dungey had by virtue of their bidding in (and thereby paying the mortgage) the property at the trustee's sale. It is, at best, only a quitclaim deed. One who takes property by quitclaim deed is not an innocent purchaser without notice, and takes only what the vendor could lawfully convey. The debt being paid by the only persons who were bound by contract to pay it (the evidence does not disclose any contract by Cook to pay the Schopp mortgage), the mortgage was dead, and the trustee had no right to make a deed to anyone, and as he did Bensieck took it with notice of pre-existing equities. Campbell v. Gaslight Co., 84 Mo. 355; Stoffel v. Schroeder, 62 Mo. 147; Ridgeway v. Holliday, 59 Mo. 444; Stevens v. Horne, 62 Mo. 473; Mann v. Best, 62 Mo. 491; Austen v. Loring, 63 Mo. 19. (11) The possession of the wife is the possession of the husband when he holds the title. Bledsoe v. Simms, 53 Mo. 305; Farrar v. Heinrich, 86 Mo. 521.
Lubke & Muench for respondent.
(1) When an insane party, who has no general guardian, is a defendant in an action at law, it is proper that the court appoint a guardian ad litem for him. Mitchell v. Kingman, 5 Pick. 431; Sturges v. Longworth, 1 Ohio St. 544; Buswell on Insanity, sec. 132. (2) The appellant, Mrs. Cook, was a proper party defendant. Furthermore, she waived all objections to her being a party by failing to demur, and by pleading to the merits and setting up an affirmative cause of action in her name alone. First, Regarded as a feme sole because of the insanity of her husband, and her living apart from him, she was a proper party defendant. Harris v. Bohle, 19 Mo.App. 529; Phelps v. Walther, 78 Mo. 320. Second. Regarded as a tort-feasor, acting absent from and without the knowledge of her husband, she was a proper party, and the judgment against both is proper. Munter v. Bande, 1 Mo.App. 484; Merrill v. City of St. Louis, 83 Mo. 255, and cases cited. When the ouster, dispossession or holding over is the act of the wife alone, judgment in ejectment may be rendered against her. In the case at bar Mrs. Cook took the affirmative position that the possession was hers, separate and apart from her husband. Meegan v. Gunsollis, 19 Mo. 418; Hunt v. Thompson, 61 Mo. 154. If she appears and defends by plea as a feme sole the judgment against her in ejectment is valid. Von Schrader v. Taylor, 7 Mo.App. 361. Third. Mrs. Cook's failure to demur to the petition operated as a waiver of the disability which she brought forward when the verdict went against her. She could not plead to the merits, submit to the court's jurisdiction and claim to stand as a feme sole, and when defeated turn about and set up the disability of coverture. Fourth. The revision of the practice act by the law of June 10, 1889 (Session Acts, 1889, pp. 164-210), rendered married women suable in this state as though they were single. Section 3468 on page 168 reads as follows: "A married woman may in her own name, with or without joining her husband as a party, sue and be sued in any of the courts in this state having jurisdiction, with the same force and effect as if she were a feme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried." R. S. 1889, sec. 1996. The act of June 10, 1889, went into effect August 23, 1889; the general revision of all the statutes November 1, 1889; both before the appeal in the case at bar was returnable. When the necessary facts are before the appellate court it can make the necessary modification and enter the proper judgment. Baldridge v. Dawson, 39 Mo.App. 528. So that in the case at bar the point of appellant's coverture being no longer available, the appellate court may enter a judgment de novo for possession and rents from August 23, 1889. (3) The plaintiff was a sufficient expert to testify to the monthly values of the premises. Railroad v. Calkins, 90 Mo. 538. (4) The title of the respondent Bensieck does not rest on any deed or contract of Cook. It rests on the deed of trust made by Sartore & Dungey before Cook had anything to do with the property. Hagerman v. Sutton, 91 Mo. 531; Mayes v. Robinson, 93 Mo. 115. A purchaser at a mortgagee's sale who has paid the money is substituted to the rights of the mortgagee, if the sale is irregular. Jones v. Mack, 53 Mo. 147. (5) Sartore & Dungey had the right to have the mortgaged property applied to the payment of the mortgage debt, so far as necessary for their protection against personal liability on the notes. Jones on Mortgages, sec. 678a. To this end they had the right to bid at the sale under their own deed of trust. Jones on Mortgages, secs. 1636 (end), 1887; Houston v. Nord, 40 N.W. 568; Mooring v. Little, 4 S.E. 485. And Sartore had the right to have Bensieck substituted as purchaser upon the latter's consummating the purchase. This is a recognized legal practice. Jones on Mortgages, sec. 1652; Rorer on Judicial Sales, sec. 950; Ehleringer v. Moriarity, 10 Iowa 78; Culver v. McKeon, 43 Mich. 322; Procter v. Farnum, 5 Paige Ch. 619; Splahn v. Gillespie, 48 Ind. 397. And it makes no difference how technically defective the assignment or substitution is; if the deed is made, it is valid. McClure v. Englehardt, 17 Ill. 47. (6) If the sale by the trustee and substitution of Bensieck as purchaser were insufficient to pass the legal title to Bensieck, this did not satisfy the deed of trust. Bensieck having paid his own money became substituted to the rights of the holder of the deed of trust. Jackson v. Magruder, 51 Mo. 55; Jones v. Mack, 53 Mo. 47; Wilcoxson v. Osborn, 77 Mo. 621.
Ejectment against Ann Cook and Joseph Cook, her husband, for possession of second and third floors of the south half of premises 1113 North Broadway, in the city of St. Louis. Petition in usual form, except that it alleged that plaintiff was entitled to the possession of the premises on such a day; that afterwards, on such a day, the defendant, Ann Cook, entered into the possession of the premises, and unlawfully withheld the same from plaintiff; that at the time of such entry and ouster the defendants were and are still living separate and apart from each other, and that the aforesaid acts of the wife were done without the knowledge of the husband.
Summons issued and was served on both of the defendants in May, 1888. Joseph Cook being insane and in confinement, a guardian ad litem was appointed for him, who answered in usual form. Ann Cook answered separately in a lengthy answer, filed in June, 1889. This answer was a general denial, and in substance stated that Joseph Cook for more than five years last past had been insane and was now insane, and for that...
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