Adams v. Boyd, 30483.

• Court: United States State Supreme Court of Missouri
• Citation: 58 S.W.2d 704
• Docket Number: No. 30483.,30483.
• Parties: EVERETT E. ADAMS, JOHN SULLIVAN and ESTELLE SULLIVAN, Appellants, v. WALTER M. BOYD and DELLA P. BOYD, husband and wife.
• Decision Date: 16 March 1933

58 S.W.2d 704 EVERETT E. ADAMS, JOHN SULLIVAN and ESTELLE SULLIVAN, Appellants,
v.
WALTER M. BOYD and DELLA P. BOYD, husband and wife. No. 30483. Supreme Court of Missouri. Division One, March 16, 1933.

[58 S.W.2d 705]

Appeal from Pettis Circuit Court. — Hon. ____, Judge.

AFFIRMED.

E.C. Littlefield and M.D. Aber for appellants.

(1) The purported sale under the deed of trust was void and conveyed no title whatever. This is true because, First, — Such sales can be made only by virtue of the provisions of Section 3075, R.S. 1929, and the terms of the instruments. The deed of trust vested the legal title in Judge Harte, his right to be divested only by his death, refusal or other inability to act. Shanewerk v. Hoberecht, 117 Mo. 22; Springfield v. Donovan, 120 Mo. 432; Hume v. Hopkins, 140 Mo. 65; Kelsay v. Farmers Trust Co., 166 Mo. 171; Miller v. Bank, 235 Mo. 530; Swabey v. Boyers, 274 Mo. 341. Second, — There was no sale by Judge Harte, holder of the legal title conveyed to him by Reiber. The testimony showed that without cavil or question that he had neither died, refused or otherwise incapacitated himself from acting. No legal title was, therefore, conveyed. Sec. 3075, R.S. 1929; Bank v. Chapman, 134 Mo. 427; Graham v. King, 50 Mo. 22; Pollham v. Revely, 181 Mo. 622; Fetter v. Lee, 225 Mo. 319; Swabey v. Boyers, 274 Mo. 341. (2) Foreclosure of mortgages by operation of a power of sale, rests solely upon the contract, is in utter contravention of the common law, and sales thereunder are closely scrutinized, and unless strictly followed, will be set aside. 41 C.J. 1002, sec. 1461; Powers v. Kueckhoff, 41 Mo. 430; Kelsay v. Bank, 166 Mo. 157; Swabey v. Boyers, 274 Mo. 332. (3) This action is brought under what is now Section 1520, R.S. 1929, which requires a finding of any and all rights of any of the parties when asked by either party, and which is most comprehensive in its terms and powers. Coal Co. v. Dent, 308 Mo. 557; Swisher v. Pemberton, 249 Mo. 200; Richards v. Coal Co., 221 Mo. 173; Howard v. Brown, 197 Mo. 50; Ball v. Woolfolk, 175 Mo. 285. (4) Under the pleadings and evidence, it was the duty of the court to make a finding as to the rights of plaintiffs, even upon the plaintiffs' theory that such rights were only equitable, if any. Cong. B'Nai Abraham v. Arky, 20 S.W. (2d) 904. (5) The defendant cannot invoke the rights of an innocent purchaser. The terms of the Reiber deed of trust appeared of record; the notice of sale did not aver that the trustee had refused or was unable to act, and the purported trustee's deed showed upon its face, not a statement of the refusal or inability of the trustee to act, but only that he was outside the boundaries of Johnson County. Jackson v. Johnson, 248 Mo. 702. (6) The undisputed evidence was that the original noteholder through her agent had agreed that the land in question should be sold free of the lien of the Reiber deed of trust, whereby she would look to the remainder of the land for her security. The plaintiff Adams and his coplaintiffs' grantor relied upon this agreement in getting under this land. Pine purchased the note after maturity, taking it cum onere, and was not an innocent purchaser. He took it subject to all equities. Sec. 2631. R.S. 1929; Dowling v. Bank, 216 Mo. App. 86.

J.K. Owens and T.C. Owens for respondents.

(1) This is an action in law and the court had no power under the pleadings herein to grant equitable relief. Secs. 1520, 1521, R.S. 1929; Jacobs v. Waldron, 298 S.W. 773; Russ v. Hope, 265 Mo. 638; Thompson v. Stillwell, 253 Mo. 89; Lee v. Conran, 213 Mo. 404: Chamberlain v. Waples, 193 Mo. 96; Lead Co. v. Maynard, 283 Mo. 646; Stewart v. Loan Co., 222 S.W. 805; Cousin v. White, 246 Mo. 297. (2) Under the pleadings and evidence in this case, the court had no power to inquire into the fact as to whether or not the deed of trust was released by oral agreement. Lipscome v. Talbott, 243 Mo. 31; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 675. (3) Trustee's sale, whether invalid or not, conveys legal title. Feller v. Lee, 225 Mo. 319; Hume v. Hopkins, 140 Mo. 65; Long v. Long, 141 Mo. 352; Lainer v. MacIntosh, 117 Mo. 508; Riffle v. Pullam, 125 Mo. 108; Wolf v. Ward, 104 Mo. 127; Schanewerk v. Habrecht, 117 Mo. 22; Marsden v. Nipp, 30 S.W. (2d) 82; Adams v. Carpenter, 187 Mo. 613; Hoffman v. Bigham, 24 S.W. (2d) 131. (4) An invalid foreclosure of deed of trust does not vitiate a subsequent deed to innocent purchasers from a vendor in possession under the sheriff's deed in foreclosure. Adams v. Carpenter, 187 Mo. 613; Lunsford v. Davis, 254 S.W. 886. (5) A sale by a trustee under an advertisement omitting the year does not affect the validity of the trustee's sale. State v. Bryant, 14 Mo. 247; Springfield Engine & Thresher Co. v. Donovan, 120 Mo. 423; Nolan v. Bank of Lees Summit, 129 Mo. 56; 41 C.J. 995; Parmley v. Walker, 102 Ill. 617. (6) In this State a purchaser for value at a trustee's sale will not be affected with any previous agreement between the creditor and the debtor, unless he had notice of such agreement before his purchase. Schwartz v. Kellogg, 243 S.W. 183; Beattie v. Butler, 21 Mo. 313; Powers v. Keuchoff, 41 Mo. 425; Stewart v. Omaha Loan & Trust Co., 283 Mo. 380; Potts v. Smith, 178 S.W. 83; Harrison v. Moore, 199 S.W. 188; Anderson v. Cole, 234 Mo. 1; Strong v. Wybark, 204 Mo. 341. The burden of proving title to property under any unrecorded instrument, in the absence of unsuspicious circumstances is upon the party making such claim. Harrison v. Moore, 199 S.W. 188; Ladd v. Anderson, 133 Mo. 625; Hendricks v. Calloway, 211 Mo. 561.

ATWOOD, J.

This is an appeal from a judgment for defendants in a proceeding to recover possession of and determine title to about forty acres of land in Johnson County, Missouri.

John Reiber is the common source of title. Upon his death the land was sold for payment of his debts by appropriate steps in the probate court of said county. Appellants, who were plaintiffs below, claim title under an administrator's deed duly executed and delivered in pursuance thereof and subsequently recorded, while respondents claim under a subsequently executed and recorded sheriff's deed purporting to be in consummation of foreclosure of a deed of trust covering this and other land given by the said Reiber long prior to his death.

Appellants contend that the trial court erred in finding for defendants, and that plaintiffs were entitled to a decree satisfying the deed of trust, cancelling the sheriff's deed, and declaring title in them, because of an oral agreement entered into between Reiber's administrator, the owner of the note secured by said deed of trust and the purchaser at said probate sale that the land here in controversy should be sold free and clear of the lien of said deed of trust, and also because of defects that render the sheriff's deed, under which respondents claim, utterly void. Respondents, on the other hand, say that this is a proceeding at law in which such equitable contentions will not be heard.

[1] Plaintiffs' petition was in two counts, one in ejectment and one to determine title. The first count states a law case only. While in the prayer of the second...