Allen v. Ranson

• Decision Date: 31 July 1869
• Citation: Allen v. Ranson, 44 Mo. 263 (Mo. 1869)
• Parties: HORACE ALLEN, Plaintiff in Error, v. J. C. RANSON et al., Defendants in Error.
• Court: Missouri Supreme Court

44 Mo. 263

HORACE ALLEN, Plaintiff in Error,

v.J. C. RANSON et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1869.

Error to First District Court.

Douglass & Gage, for plaintiff in error.

I. The power of allowing amendments is discretionary with the courts, and, unless such discretion has been abused or unsoundly exercised, the action of the courts in giving or refusing leave to amend is not to be disturbed. (Garton v. Cannada, 39 Mo. 364; Powers v. Nelson, 19 Mo. 190; Green v. Gallagher, 35 Mo. 226; Ferguson v. Han. & St. Jo. R.R., 35 Mo. 452; Dozier v. Jerman, 30 Mo. 216; Chauvin v. Lownes, 23 Mo. 227.)

II. As the amendment was proposed to be made during the trial, and changed substantially the defense, it was properly refused. (Gen. Stat. 1865, pp. 669-70, § 3; Thompson v. Mosley, 29 Mo. 497; Beardsley v. Stover, 7 How. Prac. 295; 11 Do. 170.)

III. The amendment also proposed to set up title in third parties, strangers to the record, and for this reason was properly refused. (Barber v. Harris, 15 Wend. 615; Laughlin v. Stone, 5 Mo. 43; Page v. Hill, 11 Mo. 149; Doe, Adm'r of Ogle, v. Vickers, 4 Ad. & El. 782; Redman v. Bellamy, 4 Cal. 250.)

IV. The sale was not made by Allen, but by the marshal of the court. That provision in the deed of mortgage passing the title, through Allen, to said marshal is valid. (McKnight v. Warner, 38 Mo. 132.) The marshal then became the trustee, and Allen the beneficiary ( Ex parte Bennett, 10 Ves. 393); and, as such, he had a perfect and undoubted right to purchase at the sale. (McNair v. Biddle, 8 Mo. 257; Cooley v. Rankin, 11 Mo. 642; Richard v. Holmes, 18 How. 143; Ives v. Ashley, 97 Mass. 198; Howard v. Davis, 6 Texas, 174; Erskine v. De La Baum, 3 Texas, 406.)

J. B. Hovey, for defendant in error.

A trustee can not become a purchaser of trust property placed in his hands for sale, for his own benefit, either directly or indirectly. (White & Tud. Lead. Cas. in Eq., Hare & Wallace's notes, 159, and cases cited; Smith v. Isaacs, 12 Mo. 106; Sugd. on Vend. 368.)

BLISS, Judge, delivered the opinion of the court.

Defendant and wife, with her two brothers, W. W. and Geo. W. Talley, on the first of December, 1859, executed to plaintiff a mortgage of forty acres of land near Kansas City, to secure the payment of defendant's note to plaintiff for $3,549.73. The mortgage contained a power of sale by the mortgagee, or by the marshal of the Court of Common Pleas of Kansas City, and was acknowledged before a justice of the peace. On the 18th of April, 1862, John G. Hayden, then marshal of said Court of Common Pleas, advertised and sold the property at public sale, and it was bid in for $3,600 by one S. S. Smith, who afterward deeded it to the plaintiff. The wife of defendant being dead, he continued in possession of the property, and this is an action of ejectment brought against him by the plaintiff.

The record shows that, upon trial in the Circuit Court, the plaintiff showed title in the wife of defendant and her said brothers at the time of the mortgage, its execution by them, the sale by the marshal, and deed to Smith, and the deed by Smith to him; also, that children were born alive to said defendant and wife.

The claim of the plaintiff seems to have been sharply contested, and various questions were sprung upon him. First, as the case was called for trial, the defendant filed a paper suggesting to the court “that the plaintiff was insane,” to which suggestion the court paid but little attention, and directed the trial to proceed, and defendant excepted. I do not see precisely the object of the suggestion, nor does the record intimate it. Even if the suggestion were true, which does not appear, the suit must proceed in the name of the plaintiff, and he might all the more require for his support the possession of his property. (2 Saund. Pl. & Ev. 318; Reed v. Wilson, 13 Mo. 28.) Allen, the plaintiff, is said to be a non-resident, and I see no provision for appointing a guardian in this State.

The defendant also objected to reading the mortgage in evidence, for the reason that it was acknowledged before a justice of the peace; and claims, under the decision of this court in West v. Best, 28 Mo. 551, that such acknowledgment did not pass the estate of the wife. It is not necessary either to approve or overrule the doctrine of that case, inasmuch as the acknowledgment of the defendant is not impeached by the supposed defect in that of his wife. He has both the possession and a life estate in the property; and, having conveyed the property to the plaintiff by this mortgage, can not retain the possession by showing that, when his curtesy ceases, the heirs of his deceased wife may perhaps be entitled to it. There is no such issue now as calls for an adjudication either upon the character of the acknowledgment or the validity of the curative act of February 15, 1864. When the heirs, who are not parties to this record, shall seek to enforce their claim to the property, it will then be necessary to pass upon the validity of the deed as against Mrs. Ranson. It is now sufficient to say that whatever may be the effect of the supposed defect in the acknowledgment upon the rights of Mrs. Ranson's heirs, Ranson himself has a possessory title, which is vested in the plaintiff. (Beal v. Harmer, 38 Mo. 439; Bryan v. Wear, 4 Mo. 106.) Besides, a mortgagee, even without foreclosure or sale, may, after maturity of the obligation, maintain ejectment against the mortgagor.

If this view be correct, it disposes of another allegation of error in the record. The defendant, on the trial, sought to compel the plaintiff to make the heirs of Mrs. Ranson parties to this suit, and the court very properly held it to be unnecessary to do so. The defendant is the person in possession, and not the heirs. They hold under him, if they are in at all, and not he under them. They can have no estate during his life; and for the court to have required the plaintiff to make them parties, and establish his rights as against them, as well as against the defendant, would have been a burden it had no right to impose on him.

I find in the bill of exceptions the following statement: “The defendant then offered to prove that the title of plaintiff to the land in controversy, both from Hayden, the marshal, and from Smith, to plaintiff, was a fraud upon defendant. The plaintiff objected, because fraud was not alleged in the answer. * * The court would not let him prove it, and defendant excepted. Defendant then asked leave to amend his answer, at the trial, upon terms so as to set up the fraud he attempted to prove; but the court would not let him,” etc., and he excepted. The District Court makes the refusal of the Circuit Court to receive the evidence, or permit the amendment, ground for reversal of the judgment, although the...