Atkinson v. Stewart

• Citation: 46 Mo. 510
• Parties: SARAH A. ATKINSON, Respondent, v. ELIAS C. STEWART, Appellant.
• Decision Date: 31 October 1870
• Court: United States State Supreme Court of Missouri

46 Mo. 510

SARAH A. ATKINSON, Respondent,

v.ELIAS C. STEWART, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Cunningham & Edwards, for appellant.

I. Where the purchaser of an equity of redemption pays an outstanding mortgage, made by his grantor, in which his wife had released dower, the mortgage will not be deemed to be merged. And where one of several persons interested in a mortgaged estate redeems it by paying the whole debt, he does not thereby relieve the other portions of the estate from the charge, but becomes an equitable assignee of the mortgage as to these parties, and may hold, as mortgagee, until the respective owners thereof shall contribute pro rata toward the mortgage debt, according to the value of their respective shares of the estate. (2 Washb. 166; Sto. Eq., § 1023; 4 Kent's Com. 163; 5 Pick. 146.)

II. If any one interested in the estate, as heir or purchaser, discharge or redeem the mortgage, he thereby acquires an equitable lien upon the estate, which he may hold against the widow till she contributes her proportion of the charge, according to the value of her interest. (1 Washb. Real Prop. 216, § 21; Eaton v. Simonds, 14 Pick. 98; Swaine v. Perine, 5 Johns. 482; Gibson v. Crehore, 5 Pick. 146; Strong v. Converse, 8 Allen, 560; 1 Scrib. Dow. 509, § 22; Peltz v. Clarke, 5 Pet. 481.)

III. The owner of any interest or fractional part, however small, of the mortgaged premises, may redeem. But, in order to do so, he is obliged to pay the whole debt, and by such payment he will become substituted in equity in place of the mortgagee. (2 Washb. Real Prop. 164, §§ 19-21, and cases there cited; 38 Mo. 223; 1 Scrib. 515, § 30.) If one who has the right to redeem a mortgage and to require an assignment of it to him for his protection, pays it, and a full satisfaction is indorsed upon the mortgage, it may still be between the parties interested held as a subsisting security, and payment will be held as a purchase of the party making it. The payment of the money created a trust for the parties advancing it. (15 Pet. 36; 2 Washb. 198, § 11.)

H. C. Lackland, for respondent.

I. The deed of trust was a mere authority to the trustee to convey her dower in the event that the debt should not be paid; and the relinquishment of dower was not to take effect until the trustee exercised his authority by selling the land and making a deed therefor to the purchaser. The trustee never exercised that authority, and never can, because the encumbrance is paid and satisfaction entered on the margin of the record in the lifetime of the husband. The deed of trust is dead, the authority and office of trustee is at an end, and the title to the land is no more affected than if the deed of trust had never existed.

II. Even if the deed of trust had remained unpaid, it would have been no bar to the widow's dower as long as there was no sale under it. Much less can it be so after it has become functus officio.

III. Subrogation to the rights of the mortgagee, by the purchaser, was impossible in this case. (Jones v. Bragg, 33 Mo. 337; see also Eaton v. Simonds, 14 Pick. 98.)

WAGNER, Judge, delivered the opinion of the court.

This action was brought by the respondent for the purpose of obtaining dower in a tract of land of which her husband was seized and possessed in his lifetime. The record discloses that in 1847 John Atkinson, the deceased husband, purchased the land in controversy of George Collier, and, to secure the payment of the purchase money, he executed a mortgage on the premises conveyed. In 1855 Atkinson intermarried with the respondent, and in 1857 he made and executed a deed of trust to Francis Yosti, as trustee, to secure the payment of the same debt to Collier's executors. In this deed of trust the respondent joined, and acknowledged that she relinquished her right of dower. Atkinson becoming embarrassed, made an assignment in 1859, and conveyed and assigned all his real estate, including this land, with others, to Thomas W. Cunningham, for the benefit of his creditors, and in 1867 he died.

The assignee, in pursuance of an order of court, sold all the land, and at the sale the appellant became the purchaser. With the money arising out of said sale the assignee paid off the debt due and owing to Collier's estate, and by virtue of a power of attorney from the executors, Yosti entered satisfaction on the record, acknowledging payment of the mortgage and deed of trust. The court below found that the widow was entitled to dower, and it was accordingly assigned to her. From that decision an appeal was taken.

The counsel for the appellant, in a very learned and elaborate argument, insists that as the purchase money went to extinguish the encumbrance, the widow is not entitled to be endowed, and that the appellant, as purchaser, stands in the place of the mortgagee.

We do not think that the doctrine of subrogation is applicable to this case. A mortgagor will be subrogated to the place and the rights of the mortgagee in respect to the mortgage debt, when it is necessary in order to accomplish the purposes of justice, even against the person claiming under the mortgagor himself. For instance, if a...