31 S.W. 585 (Mo. 1895), Gray v. Worst

Citation:31 S.W. 585, 129 Mo. 122
Opinion Judge:Barclay, J.
Party Name:Gray, Appellant, v. Worst
Attorney:Thomas & Hackney for appellant. McReynolds & Halliburton for respondent.
Judge Panel:Barclay, J. Brace, C. J., and Macfarlane, J., concur. Robinson, J., concurs in the result.
Case Date:June 07, 1895
Court:Supreme Court of Missouri
 
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Page 585

31 S.W. 585 (Mo. 1895)

129 Mo. 122

Gray, Appellant,

v.

Worst

Supreme Court of Missouri, First Division

June 7, 1895

Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.

Affirmed.

Thomas & Hackney for appellant.

(1) It was proper for the plaintiff to show, by evidence aliunde, the proof of publication, that the trustee's sale had been advertised thirty days. Allen v. DeGroodt, 105 Mo. 454. (2) The insertion of the notice of sale in the newspaper on the nineteenth day of May, and its publication in each successive issue of the paper up to the day of sale, June 18, constituted thirty days' notice of the sale. In computing time in cases of this character, the rule is to include the first day and exclude the last, or vice versa. Littleton v. Christy, 11 Mo. 390; Hahn v. Dierkes, 37 Mo. 574; Reynolds v. Railroad, 64 Mo. 70. (3) By the foreclosure, sale, and purchase by plaintiff, he became the owner of the land, and also the owner of all crops standing on the premises and unsevered from the soil, the deed of trust under which the foreclosure occurred having been executed by Shoemaker prior to the leasing of the premises to the defendant. Hayden v. Burkemper, 101 Mo. 644; Vogt v. Cunningham, 50 Mo.App. 136. (4) A lessee holding under the mortgagor by a lease granted subsequently to the mortgage has no greater rights than the mortgagor, and can not retain emblements after foreclosure sale. 1 Jones on Mortgages [4 Ed.], secs. 697, 780. (5) The clause in the trust deed permitting the mortgagor and his assigns to occupy the premises until sale, in consideration of paying the taxes, did not create the relation of landlord and tenant between the trustee and the mortgagor or his assigns, for these reasons: First. The mortgagor was already in possession of the premises, and the trustee never was. There was no letting of the premises. Second. The mortgagor and his assigns had the right, independent of this agreement, to so occupy the mortgaged premises. Third. It was the duty of the mortgagor or person occupying the land to pay the taxes, independent of the stipulation in the trust deed. 1 Jones on Mortgages, sec. 780. Fourth. There was, therefore, no rent reserved. (6) But conceding, for the purpose of argument, that the clause quoted in the trust deed did create the relation of landlord and tenant between the trustee, on the one hand, and the mortgagor and his assignee or lessee (the defendant), on the other, still defendant is not entitled to the crops. If defendant was the tenant of the trustee, the obligation to pay the taxes rested on him the same as it rested on the mortgagor. 12 Am. and Eng. Encyclopedia of Law, p. 715. Wood on Landlord and Tenant [Ed. 1884], pp. 971, 972, note 2; 2 Taylor's Landlord and Tenant [8 Ed.], sec. 535, p. 136. (7) The trust deed from Shoemaker having been recorded prior to the execution of the lease to defendant, the defendant is charged with notice of its contents. 1 Jones on Mortgages [4 Ed.], sec. 776.

McReynolds & Halliburton for respondent.

(1) The notice of sale under deed of trust was insufficient, not being published the requisite length of time, as thirty days must intervene between the first publication and day of sale. Bank v. Stumpf, 73 Mo. 311; Bank v. Stumpf, 6 Mo.App. 17. (2) The sale was void for the reason that the deed of trust requires the land to be sold at the door of the courthouse in the county where the premises are situate. This court will take judicial notice that there are two courthouses in Jasper county, one at Carthage and one at Joplin, so fixed by general statute. R. S. 1879, sec. 1159; R. S. 1889, sec. 3377; Session Acts, 1893, pp. 141, 142. (3) The mortgagor and mortgagee having by contract made the mortgagor and his assigns the tenants of the trustee, it places Worst in the same position that he would have been had the trustee made him a lease of the premises, and the trustee and his grantee can not maintain the action for the value of the crops; and even though rent as provid in the deed of trust had not been paid, it would only give the trustee and his assigns the right to terminate the tenancy under the statute and bring suit for possession. Sexton v. Hall, 45 Mo.App. 339; Simpson v. Keane, 39 Mo.App. 635. (4) The parties had a right to make this provision. Jones on Mortgages [3 Ed.], secs. 79 and 782. (5) Worst having rented the farm from Shoemaker and planted the crops before the sale and remaining in possession and harvesting the crops, plaintiff was not entitled to recover in this action. McAllister v. Lawler, 32 Mo.App. 91; Adams v. Leip, 71 Mo. 597. (6) So long as the mortgagee refrains from taking possession or neglects to enforce his rights under the mortgage, the mortgagor has the right to rent the mortgaged premises and to collect the rents, and he is in no way answerable to the mortgagee therefor; and in such a case the mortgagee would have no greater right against the assignee of the mortgagor. Simpson v. Keane, 39 Mo.App. 643; White v. Wear, 4 Mo.App. 341; In Re Life Association, 96 Mo. 632.

Barclay, J. Brace, C. J., and Macfarlane, J., concur. Robinson, J., concurs in the result.

OPINION

[129 Mo. 126] Barclay, J.

We adopt substantially the statements of the plaintiff in this court as giving a fair outline of the controversy.

The action was instituted in the...

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