Barnett v. Timberlake

• Decision Date: 31 October 1874
• Parties: WM. J. BARNETT, Respondent, v. JOHN TIMBERLAKE, Appellant.
• Court: Missouri Supreme Court

57 Mo. 499

WM. J. BARNETT, Respondent,

v.JOHN TIMBERLAKE, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Audrain Circuit Court.

Forrist & Ladd, for Appellant.

I. The deed of trust was but a mortgage, with possession remaining in the mortgagor; and until condition broken the

rights of trustee or cestuis que trust were equitable only, to be protected by the equitable powers of the court, where only was he or they by virtue of the conveyance entitled to possession of the property. (7 Mo., 329; 8 Mo., 365, 615; 36 Mo., 322; 49 Mo., 395, et seq.; 1 Mo., 418.)

II. The condition of the mortgage was not broken, when suit was commenced, and respondent was not entitled to possession of the property.

Edwards & Harrison, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

The defendant on the 7th day of March, 1871, was indebted to one Galbreath in the sum of $350, for which he gave his promissory note, due in one year after date. Several persons joined with the defendant in the execution of this note, only however, as sureties.

A few days after the execution of the note, the defendant executed to the plaintiff, as trustee, a deed of trust of certain personal property. The granting words in this instrument were: “bargain and sell, convey, deliver and confirm.” The condition of the deed was that the defendant should pay the note at its maturity, and thus save his sureties harmless; in which case, the property so conveyed was to be released at his cost; but if default were made in the payment of the note the deed was to remain in full force, and the trustee to proceed to sell the property, etc., etc.

There was no delivery of the property mentioned in the deed, to the trustee, but the defendant retained possession until some time in the succeeding Fall, when it was taken from him by process issued in behalf of the plaintiff, who claimed in his petition that he was entitled to its possession. The defendant's answer was a general denial. The note was duly paid at its maturity, and the defendant exhibiting it to the plaintiff, demanded his property; but this demand was only partially complied with, the plaintiff retaining a portion of it which he sold after the note was satisfied and the proceeds were applied to the payment of the costs which had accrued in respect to the property and its keeping, in consequence of suit brought.

The whole case turns upon this: whether the court below erred in holding that the trustee need not await the maturity of the note, but could, under the deed, take immediate possession of the property.

The law is well settled, that, although a trustee or mortgagee of personal...