4 S.W. 73 (Mo. 1887), Hagerman v. Sutton

Citation:4 S.W. 73, 91 Mo. 519
Opinion Judge:Sherwood, J. Per Curiam.
Party Name:Hagerman, Appellant, v. Sutton
Attorney:James Hagerman and Anderson, Davis & Hagerman for appellant. Higbee & Raley for respondent.
Case Date:February 28, 1887
Court:Supreme Court of Missouri

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4 S.W. 73 (Mo. 1887)

91 Mo. 519

Hagerman, Appellant,



Supreme Court of Missouri

February 28, 1887

Appeal from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Special Judge.


James Hagerman and Anderson, Davis & Hagerman for appellant.

(1) The court erred in its declaration of law and in basing its judgment on the ground that Mrs. Gray was married when she executed the note. She was unmarried when sued, and when the decree was taken, she was competent to defend. Yeoman v. Younger, 83 Mo. 424; State ex rel. v. Rainey, 74 Mo. 229; Bernecker v. Miller, 44 Mo. 111; Reed v. Vaughan, 15 Mo. 137; Wellshear v. Kelly, 69 Mo. 343. (2) The sale, not taking place by virtue of the general deficiency clause of the judgment, but because of the foreclosure as to the specific property involved in this suit, must be sustained as valid. Hoskinson v. Adkins, 77 Mo. 537. Even if the personal part of the judgment be void, that does not avoid the part which forecloses the mortgage. Holton v. Turner, 81 Mo. 360; Wernecke v. Wood, 58 Mo. 352; Lennox v. Clarke, 52 Mo. 115. (3) The power of attorney did not describe the mortgage, and, therefore, the court erred in admitting the release, by Baker, entered on the margin of the record. (4) The release was also improperly admitted because the answer conceded that the misdescription in the power of attorney avoided the release, unless corrected. Instead of the "northeast quarter of southeast quarter," it described the "northeast quarter of southwest quarter." The court was asked to correct the mistake. No rule is better settled than that courts of equity will not correct mistakes when the property has passed to innocent parties. Young v. Coleman, 43 Mo. 170; 2 Pomeroy's Eq. Jur., sec. 776; 2 Story's Eq. Jur. [12 Ed.] sec. 139. Here the undisputed evidence showed that plaintiff never knew of any mistake, or of any claim of a mistake, until after he purchased. (6) There was no mistake as a matter of fact. (7) If the court holds the decree of foreclosure valid, that the release of Baker was invalid, as against plaintiff, or that there was no mistake in description in the power of attorney, then we are entitled to judgment in this court, and there is no need of remanding the case.

Higbee & Raley for respondent.

(1) Sutton bought on the faith of Downing's release, who was the record owner of the note and mortgage. He is, therefore, entitled to the protection of the record. Jones on Mortgages [2 Ed.] secs. 811, 837, p. 678; Lewis v. Kirk, 28 Kan. 497; Tiedeman Real Prop., sec. 340, p. 264, and cas. cit.; Williams v. Jackson, 107 U.S. [17 Otto] 478; Williams v. Jackson, 17 Cent. Law Jour. 148. (2) The judgment of foreclosure, being a personal judgment at law upon the obligation of a married woman, was void. Fithian v. Monks, 43 Mo. 502; Hoskinson v. Adkins, 77 Mo. 537; Musick v. Dodson, 76 Mo. 624, 625.


[91 Mo. 522] Sherwood, J.

Ejectment for northeast quarter of southeast quarter of section 1, township 66, range 15, in Schuyler county, Missouri.

In 1871, Mary E. Gray was seized in her own right of the property in suit, as well as of other real estate. She joined with her husband in executing a promissory note and mortgage to Downing, the mortgage embracing the land in controversy, as well as other lands. The note had five years to run, was negotiable in form, and was transferred, as

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Downing testified, immediately after execution for value to plaintiff. In November, 1872, Mary E. Gray and husband executed a bond for a deed to defendant for the land now in controversy, the bond being recorded on the day of its execution. Afterwards, on the eighth of March, 1873, Downing executed a power of attorney to John Baker, authorizing him to release a mortgage on the Schuyler county record, state of Missouri, wherein James M. Gray and wife are mortgagors, and Wm. G. Downing, mortgagee, as to the northeast quarter of the southwest quarter of section 1, township 66, range 15. This power of attorney was acknowledged and recorded on the day of its execution, and on the same day a release was entered on the margin of the record of the Gray mortgage, as follows: "I, John Baker, attorney in fact for Wm. G. Downing, do hereby release the northeast of the southeast quarter of section 1, township 66, range 15, as described in this mortgage, this eighth of March, 1873. John Baker."

[91 Mo. 523] An objection to the introduction of this release in evidence was made by plaintiff, on the ground that the same was made after he had purchased the note and mortgage, and because Baker had no power to make the same; but this objection was overruled, and the point saved. On the twenty-sixth of March, Gray and wife conveyed the land in suit, correctly described, by general warranty deed, to defendant, and this deed was put to record May 6, of that year.

Defendant, on his part, testified that he bought the land through Richardson, at five dollars per acre; paid one hundred dollars when title bond was executed, the bond being made because the land was mortgaged. Afterwards he paid the other half of the purchase money, relying on the statements of Richardson and Baker that Downing told them that he still owned the note and mortgage, and relying on the statement of Baker that he had released the land from the mortgage, showing him, at the same time, the entry of release already mentioned; but defendant, also, admitted that the northeast quarter of the southwest quarter belonged to himself and Graves. This land is the same as that described in the power of attorney from Downing to Baker. Defendant stated that he took possession of the land in suit eleven years before the trial of this action, and as this trial occurred in November, 1883, presumably, he took...

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