McNair v. Biddle

• Decision Date: 31 July 1843
• Parties: MCNAIR AND OTHERS v. BIDDLE AND OTHERS.
• Court: Missouri Supreme Court

8 Mo. 257

MCNAIR AND OTHERS

v.BIDDLE AND OTHERS.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

LAWLESS and NABB, for Appellants. 1. The decree of foreclosure, and all the proceedings under it, are void, being coram non judice. 2. After the execution, and before the foreclosure of the mortgage dated 22nd March, 1819, no arrangement or agreement touching the equity of redemption, in any way impairing or affecting the right of redemption in the mortgagors, A. W. McNair and M. S. McMair, is valid; for until the relation of mortgagor and mortgagee be dissolved, which must appear from the showing of the mortgagee by the most undoubted and satisfactory evidence, in equity the parties are incapable of any contract as to the redemption, from the policy of the law. 3. Where the statute prescribes a mode of foreclosing mortgages, it is against the policy of the law and equity for any sale to be made by any arrangement of the parties, but the same must be in pursuance of the strict requisitions of the statute. 4. Admitting quoad A. McNair, the sale to be effectual, as made to divest title out of him, M. S. McNair, being a feme covert in 1805, co-mortgagor and co-obligor in 1819, after the seizin of her husband, and party defendant in 1823, and widow in 1826, her right of redemption survives to him, she not having consented or being privy to any arrangement. 5. The certificate of acknowledgment in the deed of 22nd March, 1819, conveying the two by forty arpents near St. Louis, is not sufflcient to divest her of her estate in the premises. 6. The sale of 4th October, 1824, was made under circumstances of fraud.

SPALDING, for Appellees.

I. The foreclosure, and sale therein, to John Mullanphy, of the two by forty arpents, passed the legal title to him. 1. The decree was sufficient to support the sale, so far as regards Alexander McNair. 1 Edwards' Comp. 182; ibid. 847, §§ 26, 36; Geyer's Digest, 308, act relating to Mortgages; ibid. 242-3, &c., acts regulating Judicial Proceedings, &c. acts of Assembly of November, 1821, p. 76, an act regulating Proceedings at Law; 1 Mo. R. 240, that proceeding is on common law side. 2. And there is no irregularity as to him, making the sale void. 10 Peters' R. 472, Voorhees v. Bank; 4 Dana R. 429; 8 Cowen R. 361, Cunningham v. Gallatin (this case cited by Nabb to show invalidity of decree: it does not show or sustain any doctrine to that effect). 3. The decree is also valid against the wife. 10 Peters, 472; Story's Eq. Pl. 72, § 71, and p. 670, § 873, that appearance of wife must be by next friend, if she does not join her husband's answer; 5 Cowen's Digest, 572; 2 Tidd's Pr. 1056, appearance of infant by attorney is error. The decree is entitled in the case of Mullanphy v. A. McNair and Margaret S. McNair, saying that the parties came, &c. 4. Complainants cannot question the passing of the title, as their own bill alleges it, and goes upon the supposition that both the mortgage and the sheriff's deed operated. 9 Peters' R. 405; 2 Mo. R. 210. 5. Even supposing the decree not binding upon the widow, it cannot affect the title, as she had no dower; first, because she released it in joining with her husband in the mortgage; and second, because the statutes then in force allowed her no dower. 1 Edwards' Comp. 178, 418; Geyer's Digest, 175; 13 Johns. R. 109, 111; 4 Leigh's R. 498; 1 Edwards' Comp. 129, 399, 509; acts of Territorial Legislature of session of 1814, p. 118, § 9, and p. 157, § 72; ibid. of 1816-17, pp. 47, 48, 49, §§ 1-4. The acts show that there was no dower in land conveyed away by husband in his life-time, or if there was, that it was divested by the sale and foreclosure. 6. A public sale of land at auction, by order of court in execution, is not, of course, void because of a private understanding between the debtor and creditor. Sugden on Vendors, 131, 323, 324, 333; 3 Mad. R. 232. Nabb cites 1 Sugden, 333, which relates to sales of reversions only.

II. There is no equity to induce the court to divest the legal title. 1. There is no equity arising from the circumstances of the sale. 2. Nor in the fact, that it was tied in with an understanding with McNair, that Mullanphy should allow him a larger sum than it would bring at sheriff's sale. 3. Nor in the agreement itself, which is given in evidence for the purpose of rebutting the alleged equity, and showing that McNair was not wronged, and not because it is necessary to prove any agreement binding in law. 4. But the agreement was binding according to law, and would not have been affected by the statute of frauds. 1 Sudgen on Vendors, 133-5; 2 Mo. R. 126, 135. 5. Had there been no agreement or understanding, the property would not have brought $6,000 at the sheriff's sale. See O'Fallon's testimony; the conclusion of Dent's deposition; Jesse G. Lindell's testimony, &c. 6. There was no plan to defraud on the part of Mullanphy. 7. Nor was there any oppression. 8. There is nothing in the relation of mortgagor to mortgagee to prevent the sale of the equity of redemption to the latter by the former. 2 Sugden on Vendors, 127; 2 Sch. and Lefroy, 672; 3 Powell on Mort. 1154 a; 1 Powell, 122, 127, a. 9. The contract, if we are bound to defend it as a contract. was not rescinded, because Mullanphy did not formally give the credit.

III. The lapse of time is a sufficient reason why the court will not interfere. Rev. Code, 470, § 5; 2 Sch. and Lefroy, 671, 672; 1 Sumner's R. 115, 116; 4 Dana's R. 429; 1 Caine's Cases in Error, 17.

IV. Mrs. McNair has no right to redeem, in consequence of the proviso in the mortgage; because if she had a right of dower, then the right of redemption in mortgage is only a recognition of that right. If she had no right of dower, then her right to redeem is without consideration, and therefore continued only till the money fell due. Mrs. McNair has no right in the property on the grounds of the Spanish law, as there was no community; for the community had been repealed. See the several acts of the legislative authority, giving dower to the wife, which is in lieu of her interest under the Spanish law, in what is called the community. A husband and wife, marrying in Spain, where the laws provide a community of interest, a partnership, between husband and wife, and then removing here, to Missouri, do not bring with them the law of Spain; but if they acquire lands, the wife's interest will be governed by the law of Missouri; and in all such cases, the wife's interest in lands acquired depends entirely on the law of the country to which they remove, and where they acquired land. Story's Conflict of Laws. Exactly on the same principles, Mrs. McNair obtained only such interest in land as the law gave her, which was in existence at the time of the acquisition of the land. Furthermore, the bill does not set out her title by community.

V. If McNair and his heirs are barred by the sale, and Mrs. McNair only has a right to redeem, then there are too many complainants, and there can be no decree for complainants. Calvert on Parties, 77, which is in 15 Law Lib. 46; Story's Eq. Pl. 199.

SCOTT, J.

This was a bill in chancery, filed by the heirs of Alexander McNair, deceased, and Margaret S. McNair, widow and administratrix of said Alexander McNair, against Ann Biddle and others; in which it was alleged, that Alexander McNair departed this life on the 18th of March, 1826, leaving the said widow and heirs; that he was seized, during his life-time, of considerable real estate in the county and city of St. Louis, and in the counties of St. Charles, Washington, Jefferson, and others, in the State of Missouri, that McNair, becoming indebted to J. Mullanphy, deceased, formerly of St. Louis, in the sum of $4,000, together with his wife, mortgaged to said Mullanphy, to secure the said sum, a lot of ground, two arpents in front and forty deep, being the same conveyed to McNair by Pierre Chouteau, by deed bearing date 13th September, 1808, and which is the subject of this controversy. The mortgage was executed on the 22nd March, 1819, and was to become absolute in one year, unless the mortgage debt was paid. During the years 1820 and 1821, McNair, to secure the payment of other debts to Mullanphy, amounting to $10,251, bearing ten per cent. interest, mortgaged all the other real estate which he possessed. On one of these mortgage debts suit was brought and judgment obtained, and the equity of redemption of all the property included in the mortgages last-mentioned was sold under execution on the 6th of October, 1824, and Mullanphy became the purchaser, with the exception of one lot in St. Louis. Mullanphy, by threats and efforts to intimidate, obtained the said property at a great sacrifice. A petition to foreclose the equity of redemption in the two by forty arpent tract, described in the first mortgage, and the subject of this suit, was filed by Mullanphy, and judgment was obtained against McNair, and the property ordered to be sold on the 4th of October, 1824. The tract was sold, and Mullanphy became the purchaser for $1,000, receiving a deed for the same, dated the 18th of October, 1824. The bill then alleges, that the said tract of land, at the time of sale, was worth $20,000, the house thereon had cost $5,800, and there were other improvements of great value. It is then charged, that Mullanphy succeeded in obtaining said lot by direct misrepresentation and delusive promises, practiced upon and made to said McNair and wife. At the sale, Mullanphy prevented all competition, by giving it to be understood that the subsequent mortgages above-mentioned were incumbrances on the two by forty arpent tract; that he was, in fact, the purchaser for the benefit and as the friend of McNair and family, and did impress on the minds of the said McNair and wife, and he would hold the said tract for their benefit, and either would re-convey it, or allow for it a large credit. Such was the confidence reposed by...