Fithian v. Monks

• Decision Date: 31 March 1869
• Citation: 43 Mo. 502
• Parties: ELIZA B. FITHIAN, Plaintiff in Error, v. MONKS and BROOKS, Defendants in Error.
• Court: Missouri Supreme Court

43 Mo. 502

ELIZA B. FITHIAN, Plaintiff in Error,

v.MONKS and BROOKS, Defendants in Error.

Supreme Court of Missouri.

March Term, 1869.

Error to St. Louis Circuit Court.

This was an action of ejectment, commenced March 4, 1866, in the St. Louis Circuit Court, by the plaintiff in error, to recover the possession of a lot of land in the city of St. Louis.

On the trial it was admitted that the plaintiff was the former owner of the lot in question, and was entitled to recover unless her title was divested by a sale under execution in the case of Mason v. Barnard and Fithian, under which sale the defendants were holding the land.

The case of Mason v. Barnard and Fithian was a suit in the St. Louis Circuit Court, commenced December 12, 1861, to foreclose a deed of trust, in the nature of a mortgage, executed by Barnard to Catherine Graham, in which suit it was alleged that Mrs. Graham had transferred her rights as mortgagee to Mason, and Barnard had assigned all his interest in the mortgaged premises to Mrs. Fithian, under an agreement on the part of Mrs. Fithian to pay off and discharge the mortgage debt. Process was duly and regularly served on both Barnard and Mrs. Fithian, and, as neither appeared, judgment by default was taken against them, and at the second term a final judgment was rendered in the suit. The following abstract of the proceedings in the suit of Mason v. Barnard and Fithian contains all that is material to the present inquiry:

The petition states that Catherine Graham, by deed dated May 9, 1859, for the consideration in the petition mentioned, did bargain, sell, and convey to the defendant Joseph S. Barnard certain real estate in the city of St. Louis (a description of which is given); that the consideration was $3,190.83, part of which was paid in cash; and that for the balance of $2,811.72 Barnard executed and delivered to said Catherine Graham five negotiable promissory notes of the same date as the deed, payable to his own order, and by him indorsed for the sums and at the times following: one for $319.80, at six months after date; and four notes, each for $638.16, respectively at one, two, three, and four years after date, all bearing interest at the rate of six per cent. per annum from date; that in order to secure the payment of the said notes, and the interest that might accrue thereon, to the said Catherine Graham or the holder thereof, and for the consideration of one dollar, the said Barnard conveyed the said premises to the defendants Garland and Priest, in trust, with a provision that if the said notes should be paid when due the deed should be void. That it was in and by the said deed stipulated and agreed that if default should be made in the payment of the said notes or the interest thereon, or any part thereof, all of the said notes, at the option of the holder thereof, might be considered as due, and in that case the trustees might, without waiting for the maturity of any of the other notes, proceed to sell the property at public auction, and from the proceeds, after paying costs and expenses, pay all of the said debt remaining unpaid, with the interest thereon, the balance to be paid over to Barnard or his legal representatives. That it was also agreed, in and by the said deed, that in case any of the notes should remain unpaid after maturity, the same should bear interest at the rate of of ten per cent. per annum. That, by deed dated June 13, 1859, Barnard did grant, bargain, sell, and convey the above, together with other property, to the defendant Eliza B. Fithian; “that by the terms of the said conveyance the said Eliza did expressly assume and agree to pay off and discharge the amount of the said encumbrance or deed of trust upon the said premises, as a part of the consideration or purchase money therefor.” That the said Catherine Graham delivered the said three notes last above mentioned, payable respectively in two, three, and four years after date, to the plaintiff, whereby he became and is the legal holder and owner thereof, and is entitled to the moneys due thereon, and to enforce the said deed of trust. Avers that, “although the note at two years long since became due and payable, no part of the principal or interest thereof, or of either of the other two of the said notes, has as yet been paid; and the plaintiff therefore elects to consider the notes above mentioned, payable in three and four years, immediately due and payable, in accordance with the terms of the said deed of trust.”

Prayer: “That the defendants and each of them may be foreclosed of all interest, lien, and equity of redemption in the said premises, and that the same may be sold and the proceeds be applied to the payment of the costs of the action and the amount due on the said notes, under and according to the terms of the said deed of trust, with interest up to the time of payment; and that if the money arising from the sale of the said premises should be insufficient to pay the amount due and coming to the plaintiff on account of the said debt, on the ascertainment of such deficiency the plaintiff may have a judgment personally against as well the said Eliza B. Fithian as the said Joseph S. Barnard, for the amount thereof, together with interest and costs of suit, or for such other and further relief as the court may deem proper.”

At the February term, 1862, defendants Garland and Priest put in a formal answer; and against the defendants Barnard and Fithian, who were personally served with process, judgment by default was taken, which was perfected at the succeeding October term of court. The judgment was rendered October 23, 1862, for $2,311.37.

JUDGMENT.--“And now on this day, this cause coming on for trial, and the petition of the plaintiff having heretofore been taken as confessed against the defendants Joseph S. Barnard and Eliza B. Fithian, who, although duly sum moned, failed to appear and answer the same, and all of the said defendants now failing to appear, on motion of plaintiff's attorney the same is submitted to the court for trial upon the pleadings, exhibits, and proofs. And the court having duly heard and considered the same, and it appearing therefrom that the plaintiff is entitled to the judgment asked for in his petition, and proceeding to ascertain the amount due and payable to the plaintiffs by the defendants Joseph S. Barnard and Eliza B. Fithian, for the debt mentioned in the said petition and the deed of trust therein set forth, and interest thereon to the date hereof, the court doth find the same to be the sum of $2,311.37. The court doth therefore order, adjudge, and decree that the plaintiff do recover of the said Joseph S. Barnard and Eliza B. Fithian the said sum of money, together with legal interest thereon from the date hereof, and costs of this suit, to be levied of the following real estate and premises, contained and described in the deed of trust set forth in the said petition as, etc. [ describing.] And it is further ordered, adjudged, and decreed, that if the said real estate and premises be not sufficient to satisfy the said debt, interest, and costs, then the residue shall be levied of other goods, chattels, lands, and tenements of the defendants Joseph S. Barnard and Eliza B. Fithian. And it is further ordered and adjudged that a special writ of fieri facias do issue, directed to the sheriff of the county of St. Louis, in conformity hereto.”

On this judgment a special execution was issued conformably to the judgment and the statute in relation to the foreclosure of mortgages. The plaintiff takes an exception to the execution, in this: that this judgment, as recited in the execution, expresses the amount of the costs in dollars and cents, and so departs from the language of the judgment as entered on the record.

Under this execution the sheriff sold the mortgaged premises; and the amount realized being insufficient to satisfy the mortgage debt, he levied upon, advertised, and sold the lot of land now in controversy, then belonging to Mrs. Fithian, one of the execution debtors. This sale took place February 16, 1863, and Benjamin Hood became the purchaser, at the sum of $1,600, and a formal, regular deed was made to him by the sheriff. No exceptions are taken to the proceedings of the sheriff in the conduct and consummation of the sale.

The tenants of Mrs. Fithian in possession of the lot then sold, upon receiving from Hood notice of the sale, attorned and paid rent to him. Hood remained in possession of the lot by his tenants until July 26, 1864, when he sold the lot to Monks for the price of $7,000. Since the last-mentioned date, Monks has been in possession.

Mrs. Fithian sued out a writ of error to this court in the before-mentioned suit in favor of Mason, and the judgment below was reversed and the suit remanded for further proceedings. The case is reported in 36 Mo. 384.

Thereupon the present suit was commenced. The court below decided that the reversal of the judgment in Mason v. Barnard and Fithian did not affect the title of an innocent purchaser at sheriff's sale under the judgment, and gave judgment for defendants.

T. T. Gantt, for plaintiff in error.

The judgment over against Eliza B. Fithian was an absolute nullity. It was an entirely different judgment from that asked for in the petition. It was wholly unwarranted, either by the rules of chancery practice or by our own statute respecting mortgages and deeds of trust. It was a judgment rendered without any notice to the defendant, Fithian, that any such judgment was asked or was possible, and was in flat violation of every rule of law and common right. (Mason v. Bernard and Fithian, 36 Mo. 384-392; R. C. 1855, p. 1089, §§ 1011-1014; Riley's Adm'r v. McCord, 24 Mo. 265; Simonson v. Blake, 20 How. Pr. 482; Janney v. Spedden, 38 Mo. 395, 401, 402.)

If the proceeding to foreclose the mortgage (deed of trust) had been an equitable suit, according to the old chancery practice the only judgment could...