Bensieck v. Cook

• Citation: 110 Mo. 173,19 S.W. 642
• Parties: BENSIECK v. COOK.
• Decision Date: 23 May 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 642

110 Mo. 173

BENSIECK v. COOK.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

EJECTMENT — PARTIES — HUSBAND AND WIFE — ACTION AGAINST LUNATIC — MORTGAGE SALE — OBJECTIONS WAIVED.

1. Where the person claiming title to land is insane and confined in an asylum, and his wife is in the actual possession of the land, she is a proper party defendant to an action to recover possession.

2. A defendant who has failed to demur to a petition on the ground of misjoinder of defendants, and who has actively defended the action on the merits, cannot obtain a reversal of a judgment against all the defendants on the ground that it was error to make him a party.

3. In ejectment against an insane defendant the court may appoint a guardian ad litem, and may render judgment binding on the lunatic.

4. Where the purchaser of land at a trustee's sale brings ejectment to recover the land sold, evidence that defendant had paid part of the debt secured by the trust deed, and had paid taxes on the land, is immaterial.

5. Where a mortgagor has sold the land subject to the mortgage, and the purchaser has assumed payment of the mortgage debt, the mortgagor may bid in the land at a sale under the mortgage, and transfer his bid to a third person, without thereby effecting a satisfaction of the mortgage.

6. A sale under a deed of trust is not rendered invalid by the fact that the owner of the equity of redemption who bought it subject to the trust deed is insane at the time of the sale.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Ejectment by John C. Bensieck against Ann Cook and Joseph Cook, her husband. Plaintiff obtained judgment. Defendant Ann Cook appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

Ejectment against Ann Cook and Joseph Cook, her husband, for possession of second and third floors of the south half of premises 1113 North Broadway, in the city of St. Louis. Petition in usual form, except that it alleged that plaintiff was entitled to the possession of the premises on such a day; that afterwards, on such a day, the defendant Ann Cook entered into the possession of the premises, and unlawfully withheld the same from plaintiff; that at the time of such entry and ouster the defendants were and are still living separate and apart from each other, and that the aforesaid acts of the wife were done without the knowledge of the husband. Summons issued and was served on both of the defendants in May, 1888. Joseph Cook being insane and in confinement, a guardian ad litem was appointed for him, who answered in usual form. Ann Cook answered separately in a lengthy answer filed in June, 1889. This answer was a general denial, and, in substance, stated that Joseph Cook, for more than five years last past, had been insane, and was now insane, and for that space of time confined in an insane asylum, and incapable of attending to any business, or of defending the suit, or of understanding the nature of the same; that for three years prior to the 4th day of November, 1882, said Joseph had been insane, an inmate of an in-sane asylum during said three years, and at said date was insane, and wholly incapable of attending to business, or of understanding the nature of a contract; that at said date the property in question was owned by Joshua Sartore and Francis W. Dungey, on which property was a deed of trust made by Sartore and Dungey to secure a debt due to Jacob Schopp for $5,000, due in installments and interest notes having several years to run; that on said date Sartore and Dungey sold the premises, of which that in litigation forms part, to Joseph Cook, for the consideration of $7,000, $2,000 of which consisted in cash paid by said Cook, and the assumption by him of the $5,000 indebtedness aforesaid; and thereupon said Cook entered into possession of the premises so sold to him, and defendant Ann Cook has been in possession of said premises ever since; that immediately after said transaction Joseph Cook became so violently insane that he had to be confined in the insane asylum, and has been there confined ever since; that thereafter Ann Cook paid on said deed of trust due Schopp $2,200, which, with the amount paid by said Joseph, aggregates the sum of $4,200; that, in addition thereto, said defendant Ann has paid taxes and made improvements on the property, amounting, with the sums already mentioned, to $5,500; that the improvements were made in good faith; that at the time Sartore and Dungey sold to said Joseph said property they well knew he was insane and unable to transact business, and so did plaintiff; and they, Sartore and Dungey, made said Joseph a general warranty deed for said property, except as against said deed of trust; that said premises were benefited to the extent of said money paid and improvements made in good faith by defendants, and they prayed for judgment for that sum. The answer then alleges that on April 11, 1888, the property in question was, at the instance of Sartore and Dungey and plaintiff, advertised for sale under the Schopp deed of trust, and was knocked down to Sartore and Dungey; that, instead of taking a deed from the trustee to themselves, Sartore and Dungey caused one to be made to plaintiff, for the purpose of injuring and defrauding defendant, and that these acts constitute a payment of the deed of trust. The reply admits the insanity of Joseph Cook, and his confinement in the insane asylum, but denies Ann Cook's possession of the whole of said two houses, and reiterates that she is only in possession of the second and third stories of 1113 North Broadway; denies that Joseph Cook became violently insane immediately after buying the property from Sartore and Dungey; denies the payments made by Ann Cook; denies that he or Sartore and Dungey knew Cook was insane; denies each and every allegation contained in defendant's last special defense; and says that plaintiff did buy the property at a sale under said deed of trust, and that he bought the same for himself in good faith; and denies that there was any fraud whatever connected with the sale and purchase. The deed made from Sartore and Dungey to Joseph Cook recited a consideration of $7,000, was a general warranty deed, but excepted from the warranty the deed of trust previously given by Sartore and Dungey to Schopp. The deed of trust previously made by Sartore and Dungey, under which the property was sold, was in ordinary form, and made the recitals of the trustee's deed prima facie evidence. Other facts necessary to a determination will be noticed in discussing the various points to which they pertain. At the close of all the evidence defendants asked a series of instructions to the effect that plaintiff could not recover; that, if Sartore and Dungey bid in the property at the trustee's sale, plaintiff could not recover; that if Sartore and Dungey, or either of them, bid in the property at the trustee's sale, this satisfied the deed of trust, and perfected Cook's title; that the trustee had no right to make a deed to any one but the actual bidder at the sale; that defendant Ann Cook being a married woman, and her husband being insane, the plaintiff was not entitled to recover. All these instructions were refused by the court, and defendants excepted. The court then gave to the jury a peremptory instruction to find for plaintiff on defendant's counterclaim, and to find for him as to possession, and to assess the damages and monthly values of the property according to the reasonable value thereof. The jury found as directed. Judgment was entered for plaintiff; but defendant Ann alone has appealed.

H. D. Laughlin, for appellant. Lubke & Muench, for respondent.

SHERWOOD, C. J.

1. The wife was a necessary party to the suit. She withheld possession of the premises, and was the only active defendant in the cause. She alone filed a motion for a new trial and in arrest, based upon the idea that, she being a married woman, and her husband insane, no judgment could be rendered in the cause against either of them — First, because her husband was insane, and, second, because she was a married woman. Our statute requires that ejectment shall be brought against the person in possession of the...