Seiberling, Miller & Company v. Tipton
| Citation | 21 S.W. 4,113 Mo. 373 |
| Parties | Seiberling, Miller & Company, Appellants, v. Tipton et al |
| Decision Date | 23 January 1893 |
| Court | United States State Supreme Court of Missouri |
Appeal from Barton Circuit Court.--Hon D. P. Stratton, Judge.
Affirmed.
J. M Dye for appellants.
(1) Plaintiffs made a prima facie case by showing that at the time Jester executed the deed of trust to plaintiffs, he Jester, was in possession of the premises claiming the fee. Dale v. Faivre, 43 Mo. 556; Davis v Thompson, 56 Mo. 39; Norfleet v. Russell, 64 Mo. 176; Jackson v. Porter, 1 Paine, 457; Ricard v. Williams, 7 Wheat. 59; Duncan v. Harder, 4 John. 202; Harding v. Cook, 5 M. & P. 181. (2) When no legal title to land is shown, the party showing the prior possession will be held to have the better right. Schultz v. Lindell, 33 Mo. 172; Dale v. Faivre, 43 Mo. 556. (3) Defendants were not entitled to any relief under the pleadings. If an ejectment be resisted by an equitable defense, the answer must contain all the elements of a complaint. (4) The deed of trust from Glase to Jewart put in evidence by defendants, was absolutely void for uncertainty in description, and imparted no notice. Campbell v. Johnson, 44 Mo. 247; Boardman v. Redd, 6 Pet. 328; Hardy v. Mathews, 38 Mo. 121; Cass Co. v. Oldham, 65 Mo. 50; 1 Greenleaf on Evidence [14 Ed.] secs. 297 to 301, inclusive; Bell v. Dawson, 32 Mo. 87; Clemans v. Rannells, 34 Mo. 579; Evans v. Ashley, 8 Mo. 178; Carter v Holmes, 60 Mo. 498. (5) It was not such an instrument as was authorized to be recorded by law, and therefore imparted no notice to subsequent incumbrancers. Revised Statutes, 1889, secs. 2418 and 2419; Martin v. Nixon, 92 Mo. 34. (6) The agreement, by which Jewart took the property back from Jester, had the effect of discharging the deed of trust, whether he entered a formal discharge on the record or not. McNair v. Picotte, 33 Mo. 57; Pease v. Iron Co., 49 Mo. 124. (7) If it is apparent that his intention at the time was to discharge the mortgage, the intention must prevail, and no subsequent change of intention can give affect to a lien that has been intentionally discharged. Aiken v. Railroad, 37 Wis. 469; Hunt v. Hunt, 14 Pick. 374; Gardner v. Aster, 3 John. Ch. 53; Dickason v. Williams, 129 Mass. 182; 2 Devlin on Deeds, secs. 1319, 1321; Eaton v. Simonds, 14 Pick. 98; Runyon v. Stewart, 12 Barb. 537; Atkison v. Angert, 46 Mo. 517. (8) A mortgage, irregular upon its face, can only be foreclosed in a court of equity. McQuie v. Peay, 58 Mo. 56; Carter v. Holmes, 60 Mo. 498.
H. C. Timmonds for respondents.
(1) In actions of ejectment recovery on prior possession is generally limited to cases where the defendant is a mere intruder or trespasser, and does not extend to cases where defendant is in possession under color or claim of title. Prior v. Scott, 87 Mo. 303; Dunn v. Miller, 75 Mo. 260. (2) An equitable title will prevail over a legal title where the holder of the legal title had notice of the equities, or had such means of knowledge as to put him on inquiry. Plaintiffs did have notice. Swisher v. Sensenderfer, 84 Mo. 104; Meier v. Blume, 80 Mo. 179. (3) Where an equitable defense or title is pleaded to an action in ejectment, it is not necessary that there should be a prayer for affirmative relief or for a reformation of the defective conveyances pleaded. Harris v. Vinyard, 42 Mo. 568; Sedgwick on Trial of Titles, sec. 488. (4) In the absence of a special agreement to that effect, the quitclaim deed from Jester to Jewart's wife did not extinguish the deed of trust held by Jewart. Christian v. Newberry, 61 Mo. 446; Hill v. Bube, 3 Kernan, 556. (5) The momentary release written on the margin of the deed of trust by Jewart, in ignorance of the fact that a subsequent mortgage was held by plaintiffs, did not deprive Jewart of his lien, and equity will still enforce it as a prior lien. Jones on Mortgages, secs. 966-972; Ferguson v. Glassford, 35 N.W. 821; Hanlon v. Doherty, 9 N.E. 782.
This is an action of ejectment for lots 1 and 2, block 1, in the town of Dublin in Barton county. The defendants, Tipton and his tenant Cook, answer by way of an equitable defense. The court found for defendants, and the plaintiffs appealed.
The facts are these: On the twelfth of October, 1881, Jewart sold and conveyed the property to Samuel Glase; and the latter, at the same time, executed to Morlan a deed of trust to secure two notes signed by Glase and payable to Jewart, one for $ 100 and the other for $ 400, being the purchase price of the property, except $ 100 paid in cash by Glase. This deed and deed of trust describe the property as lots 1 and 2, making no mention of the block. Afterwards and on the twenty-fifth of November, 1882, Glase, by a proper description, conveyed the lot to Jester. This deed states that it is made subject to a mortgage to E. A. Jewart, dated the twelfth of October, 1882, for $ 400. The deed of trust to which reference is thus made, called a mortgage, being the one before mentioned, bears date the twelfth of October, 1881. The $ 100 note had been paid at that time, so there was in fact but $ 400 then unpaid. On the twenty-fourth of January, 1883, and after the before-mentioned deeds and deed of trust had been recorded, Jester and wife conveyed the lots to a trustee to secure a debt of $ 595 owing by him to the plaintiffs. At this time Jester was in possession of the lots.
Thus matters stood until the fall of 1884, when Jester, being unable to pay the $ 400 note, turned over possession to Jewart. On the thirteenth of October, 1884, Jester executed a quitclaim deed to the wife of Jewart. In February, 1886, Jewart sold the lots to defendant Tipton. Jewart at that time went to the recorder's office and acknowledged satisfaction on the margin of the deed of trust made by Glase to him to secure the $ 400 and $ 100 notes; but before he left the office he heard, for the first time, of the deed of trust from Jester to the plaintiffs, and he then and there caused the recorder to erase the marginal entry of satisfaction. He then gave Tipton a title bond. To perfect the title he caused the sheriff, acting as trustee, to sell under his deed of trust, and Tipton became the purchaser at a sale made on the third of April, 1886, and then went into possession. This deed followed the deed of trust and therefore did not correctly describe the property. Jewart still held the $ 400 note secured by this deed of trust and signed by Glase.
Subsequently to all this and in 1888, the plaintiffs caused the lots to be sold under their deed of trust, and they became the purchasers at that sale, and they then brought the suit.
1. The claim of the plaintiffs that the quitclaim deed from Jester to the wife of Jewart operated as a satisfaction of the prior deed of trust held by Jewart cannot be sustained. Treat this quitclaim deed as having been made to Jewart himself instead of his wife, still there was no merger of the legal and equitable titles. While the general rule is that where the legal and equitable estates come to one person in the same right, the equitable merges in the legal estate; still that rule does not apply where there are two mortgages, and the prior mortgagee acquires a conveyance from the mortgagor or his grantee. In such cases the intervening outstanding junior mortgage will prevent a merger, if it be to the interest of the first mortgagee to keep the estates separate, and that is the case here. Collins v. Stocking, 98 Mo. 290, 11 S.W. 750.
2. The next contention that the deed of trust held by Jewart was paid, and therefore discharged by an agreement between Jewart and Jester is, we conclude, not true in point of fact. Jewart testified that, in the fall of 1884, he went to Jester and requested him to pay the Glase note, but Jester could not pay and wanted to give up the property. Jewart says Jester then said to him, The plaintiffs place much reliance upon this extract from the evidence of Jewart; but his further evidence is that there was nothing said about giving up the note or notes to Glase, the maker of them. The proof shows beyond doubt that Jewart did not give up but continued to hold the $ 400 note. There was no occasion for such an alleged agreement between Jewart and Jester, for though Jester bought the property subject to the deed of trust securing this note, still he did not make himself personally liable for its payment, either to Glase or Jewart. He simply took the lots subject to the deed of trust. Jester could not pay the deed of trust, subject to which he purchased the property, and in view of this fact he yielded up possession to Jewart...
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