Bailey v. Winn

• Decision Date: 21 December 1889
• Citation: 101 Mo. 649,12 S.W. 1045
• Parties: BAILEY v. WINN et al.
• Court: Missouri Supreme Court

12 S.W. 1045

101 Mo. 649

BAILEY v. WINN et al.

Supreme Court of Missouri.

December 21, 1889.

TRUSTS — MORTGAGES — ASSIGNMENT — COURTS — PRESUMPTION OF OFFICIAL DUTY — HEIRS.

1. A purchaser of land, with a full knowledge of an equitable title in another, becomes a trustee of the legal title, for the benefit of the equitable owner.

2. The assignee of a note secured by mortgage cannot recover in ejectment where there is no assignment of the mortgage, or transfer of the legal estate, by the mortgagee.

3. An action to enforce a vendor's lien does not involve the title to real estate, within Acts Mo. 1874, p. 256, § 2, giving the court of common pleas jurisdiction in all civil actions except where the title to real estate is involved.

4. A sale of land under execution issued from the court of common pleas is valid, as the act establishing that court gives it all the powers of a court of record, and the power to issue executions is a necessary incident to such courts.

5. The act makes it the duty of the judge to certify the judgments of the court of common pleas to the circuit court; and, until the contrary appears, it will be presumed that he performed his duty.

6. A deed from a widow to the heirs of her deceased husband will not prevail as against a sheriff's deed to plaintiff, executed during the life of the husband, though not recorded until after the execution of the deed from the widow to the heirs.

7. A judgment in ejectment for defendant is not a bar to the prosecution of another suit between the same parties, for the same land, where it does not appear that an equitable defense was pleaded in the former suit.

Error to circuit court, Macon county; ANDREW ELLISON, Judge.

Sears & Guthrie and Berry & Thompson, for plaintiff in error. B. R. Dysart, for defendants in error.

BLACK, J.

This is ejectment for 120 acres of land, the same being a part of school section 16, in township 59, range 16, in Macon county. The defendants Winn and Epperson are the tenants of James D. Sparrow, who is the curator of the estates of David B. and Thomas M. Edwards, minor heirs of Edward Edwards, deceased. Sparrow was made a defendant on his own motion, and defends for his wards, though they are not made defendants. The answer of Sparrow sets up, and he made full proof of, the following facts: On the 2d November, 1847, the sheriff of Macon county, pursuant to an order of the county court, sold one of the three 40-acre tracts to Blan, who paid the purchase price; and in October, 1850, the county court ordered the clerk to certify the fact of payment to the register of lands, to the end that a patent should be issued to Blan. He conveyed to Wilson, who purchased the other two 40-acre tracts in 1850, under an order of sale made by the county court. In 1853, Wilson conveyed the 120 acres to Trewitt, who assumed and paid the purchase price of the 80 acres agreed to be paid by Wilson. In 1858, Trewitt conveyed to Estes, and he conveyed to Agee in 1865; and the latter conveyed to Edward Edwards by a deed dated the 18th June, 1870. Edward Edwards died in possession, in 1877, leaving a widow and the two minor children before named. Edward Edwards, and those under whom he claimed, had been in possession since 1850; but no patent was ever issued by the state to the above-named purchasers or their grantees. By a deed dated and recorded on the 3d April, 1880, the widow of Edward Edwards conveyed her interest to the wards of defendant Sparrow.

1. To defeat this equitable title in the minor heirs of Edward Edwards, the plaintiff relies upon three titles. The first is a patent from the state to Edward A. Edwards, dated the 25th January, 1884, and a deed from him to the plaintiff Bailey, dated in the following February. The patent is based upon a sale of the school lands said to have been made in January, 1884; and Edward A. Edwards became the purchaser, at $1.35 per acre. The land had been sold many years before to Blan and Wilson, and the purchase price paid into the township school fund; and it is difficult to account for this last sale on any other theory than this: that it was sold through the manipulations of Edward A. Edwards. Be that as it may, Edward A. Edwards had previously sued Sparrow in ejectment for this land, and failed in his suit. He had full knowledge of the equitable title of Edward Edwards and his heirs. Conceding that Edward A. Edwards acquired the legal title by the patent, still he acquired it with actual notice and knowledge of the equitable title in the heirs of Edward Edwards. He is but a trustee of the legal title, and holds it for the benefit of the equitable title; and, unless he has acquired the equitable title, the defendants should prevail in this suit. Sensenderfer v. Kemp, 83 Mo. 581; Swisher v. Sensenderfer, 84 Mo. 104. As to the plaintiff, Bailey, little need be said. Edward A. Edwards testified that there was no understanding between him and Bailey whereby the latter is to deed back the land in case the plaintiff should succeed in this suit; but he says Bailey paid nothing for the land, and, if he fails in this suit, is to pay nothing. It is clear that Bailey is prosecuting this suit for Edward A. Edwards, and occupies no better position than would Edwards, if he were the plaintiff.

2. The second alleged title of the plaintiff is this: Edward Edwards and his wife, by their mortgage deed, dated the 11th January, 1871, conveyed the 120 acres of land to David W. Williams, to secure a note, of the same date, executed by Edwards and payable to Williams, for $670, due in two years. David W. Williams acknowledged satisfaction in full on the margin of the record, under date of 13th August, 1879. Plaintiff, however produced in evidence the note, with two assignments indorsed thereon, — one from Williams to Edward A. Edwards, and the other from him to plaintiff. Edward A. Edwards testified that he purchased this note from Williams on the 9th August, 1879, and had it assigned to himself on that day, and that the marginal satisfaction was made without his knowledge or consent, and after he had become the owner of the note. He says he had previously contracted for the note, had made several payments, and that the payment of $206.20 on the 9th August was the last one. Concede that Edward A. Edwards became the owner of the note by assignment, and that he assigned it to plaintiff; still we do not see how the plaintiff can recover in this action of ejectment on the mortgage. There is no doubt but a mortgagee, after condition broken, may recover in ejectment against the mortgagor, and those claiming under him. Sutton v. Mason, 38 Mo. 120; Johnson v. Houston, 47 Mo. 230. The assignment of the debt carries the security, so that the assignee may foreclose the mortgage; but the mortgagee may recover in ejectment, because, after condition broken, he is in law regarded as the owner of the estate. The legal title vests in him for the protection of the debt, but for no other purpose. Before the assignee of the debt can recover in ejectment, he must show a transfer of this legal estate to himself. We have held that the beneficiary in a deed of...