Anthony v. Ray

• Decision Date: 31 January 1859
• Citation: 28 Mo. 109
• Court: Missouri Supreme Court
• Parties: ANTHONY, Plaintiff in Error, v. RAY & SOMERVILLE, Defendants in Error.

28 Mo. 109

ANTHONY, Plaintiff in Error,

v.RAY & SOMERVILLE, Defendants in Error.

Supreme Court of Missouri.

January Term, 1859.

1. S. & R. were partners. A. was security for S. for $804; R. was also security for S. for $695. S., to secure A. and R. against these liabilities, executed to A. and R. a mortgage of his interest in the partnership effects, consisting of lands, goods, accounts, &c., with authority in A. or R. or either of them to take possession, and, in the event of default of payment of the secured debts by S., to apply the property or its proceeds to their payment. R. at the same time gave to A. a separate obligation in writing by which he stipulated that the debt for which A. was bound should be first paid out of the mortgaged property, and also gave him verbal assurances that the property was amply sufficient for this purpose. R. took sole possession of the mortgaged property, but paid no portion of the debt for which A. was security; he did pay off a portion of the debt for which he, R., was security, and refuses to render any account of the partnership. S. is insolvent. Held, in a suit instituted by A. against R. and S. for the purpose of obtaining a due appropriation and management of the mortgaged property, that S. was properly joined as a party defendant to such suit; that it was not necessary, in order to enable A. to maintain such suit, that he should first pay off the debt for which he was security; it was sufficient if there was reason to apprehend a misappropriation of the mortgaged property or its conversion to uses other than those provided for in the mortgaged deed; that it constituted no legal impediment in the way of the maintenance of such suit by A. that he had acquiesced in the exclusive possession and management of the property by R.; that R. having taken possession of the property and entered upon the discharge of the trust imposed upon him by the mortgage and his agreement with A., neither he nor S. could set up that the mortgage was void for uncertainty in the description of the property.

Error to Buchanan Court of Common Pleas.

Gardenhire, for plaintiff in error.

I. Ray also being a mortgagee of this property and having taken it into his possession immediately after the mortgage was given, and not as the mortgage authorized him when the notes became due, was properly made a party defendant in this suit. It seems that ample time had elapsed for him to have paid these debts, had he been disposed to do so. On the contrary, he does not appear to have attempted any thing of the kind, but was treating the property as his own. Somerville was also properly made a party defendant, because he was a party in interest, and was entitled to the surplus, if any remained, of the proceeds of the property after the payment of the debts for which the mortgage was given. The condition of the mortgage deed was such that Anthony had the right to take possession of the mortgaged property immediately in default of payment of the note of which Anthony was security by Somerville; and having the right to the possession of the property, he had a right to maintain an action against any person who prevented him from taking possession. The rule of law is clear that a security is not ordinarily entitled to a judgment against his principal until he has paid the debt for which he is security, but the condition of the mortgage deed, giving Anthony the right to the immediate possession of the property on the failure of Somerville to pay the note, exempts Anthony from the operation of this rule. The mortgage is sufficient to convey to Anthony and Ray whatever interest Somerville had in the mortgaged property, and even if the mortgage was insufficient as to creditors and others who were not parties to it, yet it would still be sufficient and binding on Somerville, Anthony and Ray, who were all parties to it.

Loan, for defendants in error.

The demurrer was properly sustained. There was a misjoinder of parties defendants. If this was a proceeding to foreclose the mortgage, Ray should have been made a coplaintiff or the excuse alleged why he was not joined as such. If it was intended to call Ray to an account for an improper disposition of the mortgaged effects, then Somerville is improperly joined as a co-defendant; or if it seeks to render Ray liable on his contract, as certain allegations in the petition indicate, it is equally clear that Somerville was improperly joined as a co-defendant with Ray. By the allegations in the petition it is shown that the paper purporting to be a mortgage is void for uncertainty. The...