Benton County v. Czarlinsky

• Citation: 14 S.W. 114,101 Mo. 275
• Parties: BENTON COUNTY v. CZARLINSKY.
• Decision Date: 30 June 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 114

101 Mo. 275

BENTON COUNTY v. CZARLINSKY.

Supreme Court of Missouri.

June 30, 1890.

FORECLOSURE OF MORTGAGE — ADVERSE POSSESSION.

1. Though a bond secured by mortgage is barred by limitation, the right of action for foreclosure will not be affected thereby unless there has been 10 years of adverse possession (Rev. St. Mo. § 3219, art. 1) in the mortgagor and those claiming under him.

2. The possession of the mortgagor, in the absence of a disinct repudiation of the mortgage, is not adverse to the mortgagee; and his grantee, who assumes the debt, cannot plead title by adverse possession in foreclosure proceedings.

Appeal from circuit court, Benton county; M. A. FYKE, Special Judge.

R. W. Campbell and Wm. Shirk, for appellant. P. D. Haslain and Jas. H. Lay, for respondent.

BRACE, J.

This is an action to foreclose a mortgage on two lots in the city of Warsaw, in said county, executed on the 11th of August, 1871, by one Bibb, to secure the payment of a bond of the same date, executed by the said Bibb, with sureties, payable to the plaintiff for the sum of $150, with 10 per cent. interest compounded, on or before the 1st of January, 1872. The suit was instituted on the 5th of March, 1885. On the 10th of October, 1872, Bibb executed a second mortgage on the same premises, which was foreclosed by decree of the circuit court of said county, and the lots sold under the decree to one Pierce, who received a deed from the sheriff therefor on the 20th day of October, 1877. On the 22d of May, 1880, Pierce sold and conveyed the premises to Nettie Owsley, and on the 12th of April, 1882, Nettie Owsley and her husband sold and conveyed the premises to the defendant. This deed contained a clause by which the defendant assumed the payment of the debt secured by the mortgage to the county. The evidence for the plaintiff tended to prove that the consideration for said deed was $625; that the deed was executed in pursuance of a written agreement or bond, by which defendant agreed to pay the mortgage debt to the county, and the remainder of the $625 to Owsley; that he paid Owsley $230. The defendant, testifying in his own behalf, denied that he ever signed any such agreement, or that he ever received any paper from the Owsleys relating to the property except his deed. He did not deny, however, that he was to pay $625 for the property, or claim that he ever paid Owsley more than $230 of the purchase money. His defense was the statute of limitations. Bibb was in possession of the premises at the time he executed the mortgage to the county, and continued in possession thereof until his death in 1875. His widow, who was also his administratrix, continued in possession until some time in 1876, when she rented it to one Oechsle, who remained in possession until 1877, when she rented it to one Logan, who remained in possession until October 20, 1877, when she turned the possession over to the said Pierce, who purchased at the foreclosure sale under the second deed of trust; and on the same day Pierce rented the premises to the defendant, who has continued in possession ever since, first as tenant of Pierce, then of Mrs. Owsley, and, since his purchase of Mrs. Owsley, as owner in his own right. It will thus be seen that the mortgagor and his grantees have been in the continuous possession of the premises ever since the mortgage to the county was executed, and there is no evidence that any payment has been made on the mortgage debt of either principal or interest.

Ten years having elapsed since the...