Beatie v. Butler

• Decision Date: 31 July 1855
• Citation: 21 Mo. 313
• Parties: BEATIE & OTHERS, Appellants, v. BUTLER & FOWLER, Respondents.
• Court: Missouri Supreme Court

21 Mo. 313

BEATIE & OTHERS, Appellants,

v.BUTLER & FOWLER, Respondents.

Supreme Court of Missouri.

July Term, 1855.

1. The death of the mortgagor does not extinguish or suspend a power of sale in a mortgage.

2. An innocent purchaser at a sale under a power in a recorded mortgage is not affected by an unrecorded agreement executed by the mortgagee at the date of the mortgage that the time of payment of the mortgage debt should be extended upon payment of interest.

3. Possession by the mortgagor's tenant is not notice to the purchaser of the unrecorded agreement.

4. As to the effect of possession as notice of an equity or unrecorded title under our statute of conveyances.

5. Notice that a sale was to take place “ at the town of St. Joseph,” held sufficient notice of the place of sale under the circumstances.

Appeal from Buchanan Circuit Court.

This was a petition to set aside a sale made under a mortgage, by the mortgagee. The plaintiffs were the heirs at law and widow of Josiah N. Beatie, deceased, and the defendants were Martin Butler, the mortgagee, and William Fowler, the purchaser of the mortgaged lots.

The facts were found by the court, and may be stated to be these:

On the 21st of December, 1844, Beatie borrowed of Butler $1525, and bought a stock of goods of Butler & Lynes, (partners in trade,) for $2147 52, and gave his note for the first named sum, payable on the first of January, 1846, with interest at ten per cent., and a note for the second named sum, payable on first of May, 1847, with ten per cent. interest from January 1st, 1846. To secure these debts, he executed on the same day a mortgage of lots 1, 2 and 3, in the town of St. Joseph, and a large tract of land in the county of Andrew, and five negroes, conditioned that if Beatie failed to pay said sums, or any part thereof, with the interest thereon, at the time the same should become due, Butler, the mortgagee, was empowered, upon thirty days' public notice being given in three of the most public places in the county of Buchanan, by posting up written advertisements describing the property and the place of sale, to sell for cash in hand said property in the manner following, to-wit: So much thereof, to be selected by Butler, as would satisfy the note for $1525 and interest the residue to be also sold in manner and form above stated, if required for the liquidation of the note for $2147 52. This mortgage was acknowledged and recorded December 23, 1844.

At the same time, Beatie and Butler executed an agreement, under seal, by which it was agreed that if Beatie should pay the interest of the $1525 note, (which was due January 1st, 1846,) he should not be required to pay the principal before January 1st, 1847. This agreement was retained by Beatie and not recorded.

In 1845, Beatie died, leaving a widow and several infant children. Administration upon his estate was granted by the county court of Andrew county to Prince L. Hudgins. Beatie died in possession of lots 1, 2 and 3, in St. Joseph, and after his death, his administrator took possession by his tenants.

On June 4, 1846, Butler gave notice that he would sell the farm of 1000 acres in Andrew county, and the lots in St. Joseph, Nos. 1, 2 and 3, at the town of St. Joseph, on the 6th of July, 1846. These notices were posted up as required by the deed.

On the 15th of June, Butler went to Andrew county, and the county court, at his instance and with the consent of the administrator, made an order on the administrator to pay the interest on the $1525 note, and Butler was paid the amount of the interest up to that date. This payment was claimed and made under and by virtue of the article of agreement of December 21st, 1844. The agreement was not produced at the time, but was found by the administrator long after the sale.

On the 6th of July the sale was made on the premises, and it was found by the court that they sold for their full cash value. St. Joseph, at the time of the sale, was a town of about five hundred inhabitants, and the business part of the town was confined almost entirely to two blocks adjoining the lots sold. The sale was well attended. Hudgins, the administrator, was present, but made no objection to the sale, and after it was over, directed the tenants of the lots to pay rent to Fowler, the purchaser. Fowler had no notice of the agreement in relation to the extension of credit, nor of the payment of interest, but knew of the possession of the lots by the administrator's tenants. At the time of the sale, all of Beatie's children were minors. No notice of the sale was given either to the widow or heirs of Beatie.

Upon this state of facts, the court was asked to set aside the sale and permit the heirs of Beatie to redeem the lots by paying the principal and interest of the purchase money paid by Fowler. The bill was filed in November, 1851. The Circuit Court refused to set aside the sale and dismiss the bill, and an appeal was taken.

Napton, (with Abell & Stringfellow,) for appellant.

1. The death of the mortgagor, Beatie, extinguished the power to sell. ( Gibson's heirs v. Jones, 5 Leigh, 370.) 2. The mortgage and the article of agreement, executed at the same time, and relating to the same subject matter, are but one instrument. (4 Mass. 569. 1 Johns. Cases, 91. 15 Johns. Rep. 463. 3 Wend. 234. 8 Mo. Rep. 49. 13 Wend. 114. Whitehurst v. Boyd, 8 Ala. Rep. Sewall v. Henry, 9 Ala. Rep. 5 Pick. 395. 10 Pick. 250, 302.) 3. The agreement by which, upon payment of interest, on the $1525 note, the payment of the principal was deferred until January 1st, 1847, was a valid agreement. 4. The payment of the interest by Beatie's administrator, though made after the day fixed by the instrument, having been accepted by Butler, was as effectual as if made on the day. (15 Pick. 262. 10 Mass. Rep. 419. 11 Mass. 217. 1 Conn. 91. Co. Litt. 218, a. 3 Salk. 3. Cowp. 808. 2 T. R. 925. 1 Conn. 91.) 5. If the foregoing propositions be correct, it follows that the sale of the mortgaged premises on the 6th of July, 1846, was made six months before the debt was due. Such sale can convey no title to a purchaser, any more than a sale under a mortgage after the mortgage debt has been paid. A purchaser under a power buys at his peril, and if there is no subsisting power or authority to sell, no title is acquired, and this principle equally reaches the case of a bona fide purchaser without notice. ( Wood v. Colvin, 2 Hill, 566. Jackson v. Anderson, 4 Wend. 482. Stufford v. Williams, 12 Barbour, 240. Jackson v. Moore, 18 J. R. 441. 1 Watts & Serg. 333. Jackson v. McKinney, 3 Wend. 234. Devinney v. Smith, 3 Johns. Ch. Rep. 344. 7 J. R. 217, 226. 6 Wend. 213. 11 Barbour, 191.) 6. But it is insisted that Fowler had notice. The possession of Beatie and of his representatives, after his death, was known to Fowler before he bid for the land and before he paid his money. This was notice of every claim which the tenant could enforce against the vendor. (16 Ves. 249. 7 Ves. 436. 14 Ves. 596. Landes v. Brant, 10 Howard. 2 J. J. Marsh. 180. 3 Paige, 421. 5 Johns. Ch. Rep. 32.) 7. Where a trust or authority is delegated for mere private purposes, the powers of the trustees, whether express or implied, must be executed strictly; and the principle applies equally to trusts, or powers coupled with an interest, as to mere naked authorities, where the trust or power does not survive. (8 Cow. 583-4. 4 Kent, 330.) 8. The notice of the place of sale was insufficient. (5 Leigh, 370. 3 Johns. Ch. Rep. 344-5. 7 J. R. 217. 1 Bibb, 257. 1 Peters, 138. 4 Dana, 185.) 9. Where the existence of a power depends upon some fact not apparent on the face of the deed creating it, the existence or non-existence of the fact must necessarily be established by parol. In such cases, all that courts can require is, that the tenant in possession shall act in good faith, and give the proper information when called upon. If his conduct or language mislead a purchaser, the latter would not be disturbed; but if he is without fault, the equity of the former being equal to that of the latter, his legal title, having never been divested through the want of power on the part of the vendor, will be preferred.

Gardenhire, Vories, Hall and Loan, for respondents.

1. The power being coupled with an interest, Butler had power to sell after Beatie's death. (Story's Ag. § 489. 8 Wheat. 203-4-5. 4 Kent, 147. 5 Paige, 114. 1 Caines' Cases in Error, 1. 4 J. C. R. 37, 115. 10 Paige, 208. 3 Litt. 410. 1 Greenleaf's Cruise, book 2, p. 99.) 2. Fowler was only bound to look to the mortgage as he found it upon the record, and is not bound or affected by the agreement between Beatie and Butler for the postponement of the payment of the note to Butler, being a purchaser for a full consideration, without notice of the agreement. (14 Serg. & R. 334, 389. 7 Watts, 382. 5 Pick. 459. 1 Paige, 208. 5 Binney, 314. Story on Ag. § 73. 12 Mod. 346. 3 Litt. 410, 423. 6 Johns. 144. 3 Pick. 177. 5 Gill & Johns. 383. 5 Vermont, 149. 1 Paige's Ch. Rep. 202.) 3. Our statute (R. C. 1845, tit. Conveyances, § 42,) provides that no instrument in writing, affecting real estate in law or equity, is valid except between the parties thereto, and such as have actual notice thereof, until the same is deposited with the recorder for record. As to the meaning of actual notice, see Story's Eq. § 399. 2 Bouv. Law Dic. 241. 8 Mo. Rep. 24. 13 Mo. Rep. 299, 300. 11 Metcalf, 247-8. 26 Maine, 484. 29 Maine, 140, 144, 145, 146.) 4. The possession by tenant was not even constructive notice to Fowler of the unrecorded agreement. It was not adverse to, but consistent with the title sold by Butler. At most, it could only impart notice of the tenant's title, and not of the landlord's. (Story's Ag. § 72-3. 5 Binney, 314. 2 Sug. on Vend. top p. 339. 7 Watts, 272. 2 Sumner, 486, 554-5-6-7. 23 Maine, 170.) 5. The notice of the place of sale was sufficient. It was reasonably certain as to place, and sufficient to prevent...