Adams v. Carpenter

• Decision Date: 30 March 1905
• Citation: Adams v. Carpenter, 187 Mo. 613, 86 S.W. 445 (Mo. 1905)
• Parties: ADAMS et al. v. CARPENTER et al.
• Court: Missouri Supreme Court

86 S.W. 445

187 Mo. 613

ADAMS et al. v.CARPENTER et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1905.

TRUST DEED—FORECLOSURE — NOTICE — SUFFICIENCY —SALE—VALIDITY—VENDOR AND PURCHASER—FRAUD— LIMITATION—TITLE BY PRESCRIPTION—BONA FIDE PURCHASER.

1. A deed by a trustee under a deed of trust conveying land on foreclosure will pass the legal title, though the land be advertised for sale for less than the time required by the deed.

2. The fact that a sale by a trustee in a trust deed is irregular can be taken advantage of by the mortgagor, or one claiming under him, only by an action to redeem.

3.Plaintiff, being the owner of an overdue note secured by deed of trust, agreed with the debtor to surrender the note and deed of trust in return for a conveyance of the property.Pursuant to this arrangement, plaintiff sent the trust deed to the debtor, who in turn sent her a deed conveying his interest in the property, which was only that of tenant by curtesy.The deed was not satisfied of record, and afterwards the debtor transferred the deed and the purchaser foreclosed.The property was sold, and defendants, without notice and in good faith, purchased from the purchaser at foreclosure sale.Held, that the fraudulent conduct of the debtor and the person who purchased the deed of trust from him did not vitiate defendants' title.

4.Where a trust deed provided that on default the property was to be sold by the trustee, or, if he should refuse to act, by the sheriff, the fact that the sale was by the sheriff, without the knowledge of the trustee, who had never been requested to act, did not vitiate the title of one who took in good faith from the purchaser at the trustee's sale.

5.A tax deed to land sold pursuant to a judgment rendered by a justice of the peace is absolutely void because of the want of jurisdiction to render such a judgment.

6.Where plaintiff maintained adverse possession under color of title 10 years, so as to entitle her to a decree establishing a title, and thereafter a person claiming under the record title went into possession, a grantee from that person was entitled to the land as against plaintiff.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Ada Adams and others against L. J. Carpenter and others.From a judgment for plaintiffs, defendantsJohn W. Osborn and another appeal.Reversed.

Tatlow & Mitchell, for appellants.Chester H. Krum, for respondents.

BURGESS, P. J.

The pleadings in this case are as follows: After alleging that the Mountain Grove Bank is a corporation organized and existing under the laws of this state, the petition proceeds as follows:

"Plaintiffs state, for cause of action, that on the 5th day of August, 1886, Rachel Myers was the owner of the east half of section 27, township 30, range 12, in Texas county, Mo., and that on said date the said Rachel Myers, together with her husband, L. E. Myers, executed and delivered their promissory note for $700 to James Adams, by which they promised to pay to the said James Adams, in seven months after date thereof, the sum of $700, with 10 per cent. interest thereon, to be paid annually, and, if not so paid, to become as principal and draw the same rate of interest.That on the same day the said Rachel Myers, together with her husband, L. E. Myers, for the purpose of securing said note, executed, acknowledged, and delivered, under their hands and seals, their certain deed of trust, whereby they conveyed to G. W. Holliday, plaintiff herein, the said east half of section 27, township 30, range 12, in Texas county, Mo., said conveyance being in trust to the said G. W. Holliday, to secure the payment of the indebtedness above mentioned, and by which deed of trust it was and is provided that in case default should be made in the payment of said debt, or the interest due thereon, at any time when the same ought to be paid, then the said trustee, at the request of the legal holder of said note, was empowered to sell said land at the courthouse door in the county seat of Texas county, first giving 30 days' public notice of the time, terms, and place of sale by advertisement in some newspaper published in Texas county, Mo., and, in case of the death, disability, absence, or refusal to act of the said trustee, the then acting sheriff of Texas county was empowered to sell said land at the request of the legal holder of said note.Plaintiffs further state that on the ____ day of ____, 1892, the said James Adams indorsed, sold, and delivered the note above mentioned to Ada Adams, plaintiff herein, and delivered to her the deed of trust above mentioned, by which said Ada Adams became the legal owner and holder of said note and deed of trust.Plaintiff further states that, from 1892 up to the filing of this petition, plaintiffAda Adams has lived and resided in the city of Columbus and state of Ohio, that G. W. Holliday, the trustee named in said deed of trust, has at all times mentioned herein resided, and still resides, in Golden City, in Barton county, Mo., and that L. E. Myers has at all times mentioned herein been a resident of Texas county, Mo. Plaintiffs further state that in April, 1897, and while the said Rachel Myers and L. E. Myers were residing upon the lands mentioned herein, Rachel Myers died; that thereafter her husband, L. E. Myers, continued to reside upon said lands, and made some small payments on the interest due on the note above mentioned; that about the month of August, 1897, and after the death of said Rachel Myers, said L. E. Myers informed the plaintiff that he was unable to pay said note, which, together with the interest, then amounted to $1,000, and proposed that, upon the surrender by her of the said note and deed of trust securing the same, he would convey and cause to be conveyed to the said Ada Adams a deed conveying to her the absolute title to all of said lands in satisfaction of said note and indebtedness; that, relying upon said representations, the plaintiff herein, Ada Adams, believing that she was receiving in return therefor a good and sufficient title to said lands, sent said note and deed of trust securing the same to the said L. E. Myers, but that the said L. E. Myers, instead of conveying said lands, or causing same to be conveyed, to plaintiff herein, Ada Adams, so as to give her a good title to said lands, only executed a quitclaim deed, by which he conveyed the interest of himself, Lewis E. Myers, to the said Ada Adams, and which only conveyed to the said Ada Adams the curtesy of the said Lewis E. Myers in said lands as the husband of said Rachel Myers, deceased; that plaintiff herein, Ada Adams, relying upon the representations of the said L. E. Myers, as aforesaid, that said lands would be conveyed to her in fee simple in exchange for said note and deed of trust, and believing that the deed so received by her did so convey said lands, and being unacquainted or uninformed as to the facts in the matter, and having no knowledge at that time of the fraud and deceit practiced upon her as aforesaid, caused said deed to be filed for record in Texas county, Mo., and the same was recorded on the 29th day of September, 1898, in Book 38, at page 227, Deed Records of Texas County.Plaintiffs further state that the said Rachel Myers, in whose name the title to said lands stood, left surviving her at her death three sons, to wit, A. L. Myers, J. C. Myers, and W. A. Myers, and one daughter, L. J. Carpenter; that, at the time of the transaction and exchange between L. E. Myers and plaintiffAda Adams, the said heirs of Rachel Myers, deceased, had full knowledge of the facts, and understood and believed that said lands were being given in exchange for the said note and deed of trust, and, after the execution and delivery of said deed by said L. E. Myers to the said Ada Adams, the said children and heirs of the said Rachel Myers, deceased, recognized said plaintiff as the absolute owner of said lands; and that said J. C. Myers made a contract of rental with said plaintiff, and occupied the said lands as the tenant of the plaintiffAda Adams, paid the taxes thereon for plaintiff, and paid the rents from said premises to plaintiffAda Adams, and that all of said children and heirs knew and understood that said land was the land and property of the plaintiff herein, Ada Adams.Plaintiffs further state that the deed of trust above mentioned was recorded on the 17th day of August, 1886, in Book 4, at page 144, Deed Records of Texas county, Mo.; that after said L. E. Myers had obtained possession of said note and deed of trust, and had kept possession of the same for about three years, and until about February in the year 1900, being in the employ of one J. C. McCaskill, and informed the said J. C. McCaskill of the condition of affairs and of his possession of said note and deed of trust, and that the same was not satisfied of record, the said L. E. Myers, A. L. Myers, J. C. Myers, and J. C. McCaskill entered into a conspiracy to cheat and defraud the plaintiff here, Ada Adams, out of said lands and out of said note and deed of trust; and that in pursuance of said arrangement and conspiracy, and with full knowledge on the part of each of the last-mentioned parties of all the facts herein, the said note and deed of trust was delivered to J. C. McCaskill, who informed the sheriff of Texas county that he was the legal holder thereof, and that the same was due and unpaid, and that the trustee named in said deed of trust had refused to act, and caused the sheriff to make a pretended foreclosure of said deed of trust for the payment of said note; and that the said lands were sold by J. W. Cantrell, the then acting sheriff of Texas county, on the 3d day of March, 1900, and were bid in by the said J. C. McCaskill for the pretended consideration of $1,300, and that J. W. Cantrell, pretending to act as trustee in said deed of trust, executed and delivered a deed to the said ...