Allen v. Pullam

• Decision Date: 24 May 1928
• Parties: WILLIAM B. ALLEN, PLAINTIFF, v. NANCY PULLAM, APPELLANT, CHARLES M. MERRIWEATHER, RESPONDENT. [*]
• Court: Missouri Court of Appeals

10 S.W.2d 64

223 Mo.App. 1053

WILLIAM B. ALLEN, PLAINTIFF, v. NANCY PULLAM, APPELLANT, CHARLES M. MERRIWEATHER, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

May 24, 1928

Rehearing Denied 223 Mo.App. 1053 at 1063.

Appeal from Pemiscot County Circuit Court.--Hon. Henry C. Riley Judge.

AFFIRMED.

Judgment affirmed.

Von Mayes and J. E. Duncan for appellant.

(1) The legal title, on condition broken, passes to the mortgagee and the mortgagor can do nothing to impair the rights of the mortgagee under the mortgage. Walcop v. McKinney's Heirs, 10 Mo. 147; Kennett v. Plummer, 28 Mo. 142; Johnson v. Houston, 47 Mo. 227; Bassett v. O'Brien, 149 Mo. 381; Hurst v. Trust Co., 216 S.W. 958; City of Springfield v. Ransdell, 264 S.W. 773; Grafeman Dairy Co. v. Mercantile Club, 241 S.W. 923; State ex rel. Wahl v. Riley, 276 S.W. 884; 41 C. J. 277; 19 R. C. L., secs. 86-87, pp. 309-310. The legal title does not carry any beneficial interest in the property, which distinguishes it from the equitable title. Black's Law Dictionary, See "Title." 36 C. J., sec. 13, p. 980; 131 Mo.App. 701. After forfeiture and before entry of the mortgagee the mortgagor has the equitable title, and after entry by the mortgagee the mortgagee has both the legal and equitable title--the equitable title merging into the legal title, and this title can only be redeemed in equity. 21 C. J., sec. 238, p. 1037; Bassett v. O'Brien, 149 Mo. 381; Curry v. LaFon, 133 Mo.App. 163; Jackson v. Cunningham, 28 Mo.App. 354; Knollenberger v. Nixon, 171 Mo. 445; 41 C. J., sec. 586, p. 618. (2) There are two kinds of ownership, incumbered and unincumbered, or limited and unlimited. Black's Law Dictionary, See "Ownership;" Millerson v. Doherty, 241 S.W. 907. The term "fee simple" relates to the duration of the estate limited or unlimited. Terminal Ice & Power Co. v. Ins. Co., 187 S.W. 564; 21 C. J., sec. 8, p. 918. While the mortgagor before entry or foreclosure, like a life-tenant, has a fee-simple estate, that is, ownership, yet, the owner of the reversion or remainder in fee has the legal title, and has such interest in the timber or improvements on the land the same cannot be removed without his consent, and a mortgagee may recover for the value of timber removed from the land without his consent prior to foreclosure, when any part of his debt remains unsatisfied after foreclosure. 10 R. C. L., sec. 29, p. 667; 23 R. C. L., sec. 12, p. 1106; Chouteau v. Boughton, 100 Mo. 406; Life Ins. Co. v. Mangold, 83 Mo.App. 281. Rent cannot be apportioned in this State and a purchaser at the foreclosure sale is entitled to all rent accruing after such sale. Culver v. Worts, 32 Mo.App. 428; Page v. Culver, 55 Mo.App. 607; Loomis v. Shriner, 165 Mo.App. 25; Guthman v. Vallery, 51 Nebr. 824; Marshall v. Mosley, 21 N.Y. 280; 48 L.R.A. 735. Rent on farm land accrues in this State at the end of the year, absent valid contract to the contrary. Osner v. Lynn, 57 Mo.App. 187; 36 C. J., sec. 1197, p. 361. (3) Foreclosure nullifies a rent contract previously made and made subsequent to the mortgage. McFarland v. Hotel Co., 202 Mo. 597; 14 A. L. R. 677-8. Where a note is given as evidence of the amount due for rent the note does not constitute payment of the rent, in the absence of an agreement to that effect. Plaut v. Gorham Mfg. Co., 174 F. 852; Mullingsworth, 99 F. 216; Howard v. Jones, 33 Mo. 583; Berkshire v. Hoover, 92 Mo.App. 349; Biggs v. Goodrich, 74 Mo. 108; Big Four Implement Co. v. Chesney, 223 S.W. 944; Freeman v. Ruth, 257 S.W. 500. A rent note referred to in a rent contract is a part of the rent contract and binds transferees with notice, and assignment of the note carries with it the contract. Williams v. Kessler, 295 S.W. 484 (7); Wilson v. Reed, 270 Mo. 400. (4) The assignment of a rent note may be an assignment of the rent and not operate as a payment of the rent. 35 C. J., sec. 548, p. 1218; 36 C. J., sec. 1217, p. 368, sec. 1439, p. 485, sec. 1463, p. 491; Deming Inv. Co. v. Bank of Judsonia, 278 S.W. 634; Oswald v. Mollett, 39 Ill.App. 449; Bennett v. McKee, 144 Ala. 601; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 162; 16 R. C. L., sec. 424, p. 918; L.R.A. 1915C, p. 230; Freeman v. Ruth, 257 S.W. 500; Sec. 6895, R. S. 1919; Matthews v. Nation, 69 Mo.App. 327. (5) An assignee who takes with notice of equities in favor of third persons is bound thereby, and in case of a note the purchaser is not a holder in due course. 5 C. J., sec. 165, p. 974; Secs. 842, 844, R. S. 1919; Long v. Shafer, 185 Mo.App. 641; Morbrose v. Flick, 187 Mo.App. 528; Commercial Inv. Co. v. Whitlock, 274 S.W. 833. (6) The mortgage lien binds all rents before they accrue after forfeiture. Unaccrued rents savor of the realty, while accrued rents are choses in action. 36 C. J., sec. 1048, p. 288; Saully v. People, 104 Ill. 349, 351; Culver v. Worts, 32 Mo.App. 428; Sec. 2211, R. S. Mo. 1919; McMeanamy v. Dawley, 183 Mo.App. 1; Coberly v. Coberly, 189 Mo. Syl. 5, p. 2; Loomis v. Shriner, 165 Mo.App. 25. (7) The purchaser at a foreclosure sale, regardless of when the reversion passes, takes the title of the mortgagor as of the time when the mortgage lien was created. The mortgage is a lien on all the interest of the mortgagor in the realty unsevered at entry or foreclosure. Farmer's Bank v. Bradley, 288 S.W. 774; 19 R. C. L., sec. 442, p. 626; 16 R. C. L., p. 600; Girard v. Mangold, 94 Mo.App. 125; Simpson v. Wabash R. Co., 145 Mo. 64; 41 C. J., sec. 393, p. 476. (8) The assignment of rents subsequent to a mortgage is void as to rents accruing after entry or foreclosure. McMeanamy v. Dawley, 183 Mo.App. 1; Farmers Bank v. Bradley, 288 S.W. 774; 36 C. J., sec. 1217, p. 368; 16 R. C. L., sec. 424, p. 918; L.R.A. 1915C, 230. (9) Where the rent is paid in advance the purchaser at the foreclosure sale is nevertheless entitled to rent after the sale, and he has a lien on the growing crops therefor, but, if not paid in advance, the purchaser is entitled to all the rent accruing after the sale. Sections 6883 and 6885, R. S. 1919; Hunter v. Henry, 181 S.W. 597; Young v. Home Tel. Co., 201 S.W. 635; Culver v. Worts, 32 Mo.App. 428. (10) A "reversion" is a present vested interest, to be enjoyed at some future time on the happening of some particular event. A mortgage conveys an estate on condition or the happening of a contingency. 7 Words & Phrases, p. 6212; 23 R. C. L., secs. 2 and 3, p. 1100; 19 R. C. L., sec. 86, p. 309, sec. 442, p. 626. A mortgage conveys the reversion after forfeiture. The reversion always accompanies the legal title, or the legal title is the reversion, as between mortgagor and mortgagee. 14 A. L. R. 640; 21 C. J., sec. 182, p. 1019; 27 Cyc. 1039; 36 C. J., sec. 14, p. 980; Vantage Mining Co. v. Baker, 170 Mo.App. 457. (11) A sale under a deed of trust, antedating a lease, extinguishes the lease, leaving no estate in either party on which to base a legal claim, and makes the tenant a tenant at will of the purchaser, and the lease serves no purpose except perhaps to determine the interest of the tenant in the crops, and a tenancy at will is a tenancy from year to year. McFarland v. Hotel Co., 202 Mo. 597; Sec. 2234, R. S. 1919; 14 A. L. R. 696 N.; Hunter v. Henry, 181 S.W. 597; Sec. 2167, R. S. 1919. A note given for rent, payable after foreclosure, and not in the hands of a holder in due course, is void for failure of consideration. Sections 1404, 815, 844, 845, R. S. 1919; 5 C. J., sec. 165, p. 974; Long v. Shafer, 185 Mo.App. 641. (12) The assignee of a note, when the consideration fails, has his remedy against the assignor as indorser or on his warranty, or for money had and received. Sections 851, 852, R. S. 1919; 8 C. J., secs. 578, 579, p. 392; 41 C. J., sec. 11, p. 35. (13) At common law a mortgage conveyed the legal title before condition broken, which rule has been modified by the courts of this State, and after condition broken all the attributes of the common law are in force in the State. 41 C. J., sec. 1, pp. 273-4, and sec. 3, p. 275.

Ward & Reeves for respondent.

(1) We "choose" to affirmatively brief respondent's theory of the case before taking up the points made in the brief of appellant. The first question logically arising from this record is, to what ownership, interest or claim in land are rents and profits due and payable? So far as we are able to discover from the authorities, the rule is universal that the owner of the reversionary interest in land is entitled to collect such rents and profits. In other words, rent is incident to the reversion. McMenemy v. Dawley, 183 Mo.App. 7; Mining Co. v. Baker, 170 Mo.App. 466; 36 C. J., p. 1019, sec. 182; 36 C. J., p. 364, sec. 1205; 24 Cyc. 1175. (2) In orderly sequence we should next define reversionary interest in land. A reversion is a vested legal estate in land, but the possession thereof cannot be enjoyed during the continuance of the preceding estate, which preceding estate in the case at bar was the leasehold interest of the tenant Allen. The reversion is never created, like a remainder, by deed or writing or other act of the grantor who creates it at the very time when the particular estate is created, but the reversion by operation of law arises where a grantor has conveyed less than his whole interest or estate. Mining Co. v. Baker, 170 Mo.App. 466; 21 C. J., p. 1016, sec. 179. (3) A mortgage or deed of trust, as we contend, leaves the whole title, which includes a reversionary interest, in cases where the land is encumbered with a leasehold interest, in the maker of the mortgage or deed of trust. Johnson v. Murray, 289 S.W. (Mo. App.) 977; Hunter v. Henry, 181 S.W. (Mo. App.) 597; Grafeman Dairy Co. v. Club, 241 S.W. (Mo. Sup.) 923; Real Estate & Loan Co. v. Gibson, 282 Mo. 75; Benton Land Co. v. Zeitler, 182 Mo. 275-279; 41 C. J....