Benton Land Company v. Zeitler
| Decision Date | 02 June 1904 |
| Parties | BENTON LAND COMPANY v. ZEITLER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.
Affirmed.
Hugh D McCorkle, P. W. Haberman and Clifford B. Allen for appellants.
(1) The first defense seeks to show the straight legal or paper title in defendants. It submits that they hold the legal title by an unbroken chain from the common source of title. In ejectment the legal title must rest with the plaintiff. Schanewerk v. Hoberecht, 117 Mo. 22; Hume v Hopkins, 140 Mo. 65; Keat v. Baker, 141 Mo. 180. (2) The fundamental principles of law governing ejectment are: (a) Plaintiff must recover on the strength of his own legal title. Dunlap v. Henry, 76 Mo. 106; Beal v. Harmon, 38 Mo. 439; Mulherin v. Simpson, 124 Mo. 616; Simpson v. Simpson, 27 Mo. 288; McReynolds v. Grubb, 150 Mo. 352. (b) He can not recover on an equitable title. Hunt v. Selleck, 118 Mo. 588; Williams v. Carpenter, 35 Mo. 70; Kingman v. Sievers, 143 Mo. 519. (c) He can not recover upon an equitable estoppel. Hayes v. Livingston, 22 Am. 533; Robertson v. Pickerel, 109 U.S. 608; Nix v. Collins, 65 Ga. 219; Winslow v. Cooper, 104 Ill. 238; Thompson v. Campbell, 57 Ala. 188; Hamlin v. Hamlin, 19 Me. 141. (3) Plaintiff is entitled to no benefit from the unrecorded deed from it to Nesbit, nor to have the same considered in its chain of title, because it offered no proof of the delivery of such deed to Nesbit, and without such delivery the deed has no force or effect and is inoperative. Hammerslough v. Cheatham, 84 Mo. 13; Turner v. Carpenter, 83 Mo. 333. (4) In the case of deeds duly placed of record, the law raises the presumption that the same have been delivered to the grantees therein named, and such presumption is conclusive unless rebutted. Warren v. Pres't, etc., 15 Ill. 236; Heil v. Reddin, 45 Kan. 562; Patrick v. Howard, 47 Mich. 40; Pierce v. Danforth, 13 Mo. 360; Lawrence v. Farley, 9 Abb. N. C. 371; Eauclaire Lbr. Co. v. Anderson, 13 Mo.App. 429. But, in the case of an unrecorded deed, the presumption fails, because, without recording, it is held that delivery will not be presumed from the mere execution and acknowledgment of a deed. Turner v. Carpenter, 83 Mo. 333; Huey v. Huey, 65 Mo. 689; Boyd v. Slayback, 63 Cal. 493; Alexander v. Kernel, 81 Ky. 356; Burton v. Boyd, 7 Kan. 26. (5) Where the unrecorded deed is found in the possession of the grantor (as was the unrecorded deed in this case), such possession raises the presumption that such deed has never been delivered. Phillips v. Phillips, 50 Mo. 603; Mitchell v. Ryan, 3 Ohio St. 383; Bernheim v. Horton, 103 Ala. 380. (6) Where an unrecorded deed is not clearly a deed for the benefit of the grantees, the presumption arises that the deed was never delivered to and accepted by the grantee. Renfro v. Harrison, 10 Mo. 411; Cravens v. Rossiter, 116 Mo. 338; Gifford v. McCloskey, 48 Hun 350; Higman v. Stewart, 38 Mich. 513. (7) The quitclaim deed of Nesbit to the Benton Land Company, for the purpose of correcting and confirming the trustee's deed (in view of the other facts and circumstances preceding the giving of such quitclaim deed), negatives the pretense of the unrecorded deed having been delivered, and is wholly inconsistent with the idea of such deed having been delivered. (8) There is nothing in the peculiar facts of this case to put defendants upon inquiry as to the existence of an unrecorded deed. On the contrary, the suit brought by Nesbit to set aside the trustee's deed, and the recitals in the quitclaim deed subsequently given by Nesbit, pointed to the conclusion that the Nesbit deeds of trust were given and accepted under the mistaken idea that Nesbit still held the title, notwithstanding the foreclosure, and thereby diverted the inquiry from any idea of an unrecorded deed. Hickman v. Green, 123 Mo. 165; Freeman v. Moffitt, 135 Mo. 269. (9) Defendants by accepting a deed with general warranty "except as against" certain incumbrances, and by the payment of interest thereon, are not estopped to deny the validity of such incumbrances. Brooks v. Owen, 112 Mo. 251; Beland v. Brewing Assn., 157 Mo. 593; Robertson v. Pickerel, 109 U.S. 608; Douthitt v. Stinson, 63 Mo. 268; Reinhardt v. Lead Co., 107 Mo. 627. (10) The delivery of the unrecorded deed being neither proved or presumed, can not be considered to support the deeds of trust given by Nesbit. Such deeds, having been given at a time when Nesbit had no title, either legal or equitable (at most merely an equitable claim) were invalid and illegal. Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemers, 120 Mo. 73. (11) Prior to default or condition broken, a trustee in a deed of trust has no power to make a valid sale of the trust property, and a sale under such conditions is ineffectual to pass the title. Long v. Long, 79 Mo. 644; In matter of Mayfield, 17 Mo.App. 684; Foster v. Boston, 133 Mass. 141; Richards v. Holmes, 18 How. 143; Jackson v. Lawrence, 117 U.S. 679. (12) A trustee should not be personally interested in the debt secured, nor closely related to either by blood or interest, nor a paid employee of the beneficiary, and he should be impartial and indifferent between the parties interested. Long v. Long, 79 Mo. 644; In matter of Mayfield, 17 Mo.App. 684. (13) Where property is susceptible of division, and it will bring more by being divided and sold in separate parcels or lots than by being sold in a body, or where by a sale of a part of the premises a sufficient amount can be realized to pay off the secured debt, then it is the duty of the trustee to make the division, and if he fails in this the sale will be held invalid. Tatum v. Holliday, Admr., 59 Mo. 422; Chesley v. Chesley, 49 Mo. 540; Montgomery v. Miller, 131 Mo. 595; Goode v. Comfort, 39 Mo. 313.
Johnson & Lucas for respondent.
(1) The court found that there was delivery of the deed, that it was unrecorded, and that defendants knew of the same, and there was ample evidence to sustain this finding. Sneather v. Sneather, 104 Mo. 209; Kane v. McCown, 55 Mo. 198; McReynolds v. Grubb, 150 Mo. 362; Kuh v. Garvin, 125 Mo. 560; Kingman v. Cornell, 150 Mo. 307; Standifer v. Standifer, 97 Mo. 241; Crowdie v. Searcy, 103 Mo. 118; Rumsey v. Otis, 133 Mo. 96; Appleman v. Appleman, 140 Mo. 313; Grant v. Ward, 52 S.W. 1028; Shoptow v. Ridgeway, 60 S.W. 723; Williams v. Smith, 60 S.W. 940; Smith v. May, 50 A. 59; Bunnell v. Bunnell, 64 S.W. 800. (2) Proof of actual knowledge of former deed is unnecessary. Maupen v. Emmons, 47 Mo. 307; Abbe v. Justice, 60 Mo.App. 308; Doyle v. Drey, 99 Mo. 466; Taaffee v. Kelley, 110 Mo. 136. But in the case at bar it was made and the court so found. (3) Sutherland and La Rue, having assumed the payment of the Nesbit deed of trust, could not be heard to question its validity, and the appellants are in no better position than their vendors. Mitchell v. Building Assn., 49 S.W. 626; Whyte v. St. Louis, 153 Mo. 80; Reynolds v. Kroff, 144 Mo. 433; White v. Murray, 145 Mo. 622; Dunway v. Day, 163 Mo. 415; Laidlaw v. Cottrell, 159 Mo. 318.
OPINION
In Banc
This is an action in ejectment to recover the western fifteen feet of lot number thirty, and the eastern three feet of lot number twenty-nine, in block one, of the amended plat of J. B. Daggett's second addition to city block 1804 of the city of St. Louis, containing eighteen feet on the north line of Lynch street by a depth northwardly of one hundred and fourteen feet, on which premises is located house number 2309 Lynch street.
The petition is in the usual form, and the ouster is laid as of October 1, 1899.
The answer is a general denial, coupled with the following special defenses:
First. That on October 21, 1889, one Mattie J. Sallee was the owner and entitled to the possession of the property, and that on said day she executed a deed of trust thereon to H. P. Faris, as trustee for the Brinkerhoff-Faris Trust and Savings Company, to secure an indebtedness of $ 1,458, which however was subject to a prior deed of trust made by the same parties to the same trustee and company; that default was made in the payment of the second deed of trust, it was duly foreclosed and the plaintiff, the Benton Land Company, became the purchaser and received a trustee's deed therefor; that on August 2, 1895, the Benton Land Company conveyed the land to Southerland and LaRue; that on November 30, 1896, Southerland and LaRue conveyed the land to Eleanore M. England, and that on November 30, 1897, Eleanore M. England conveyed the land to the defendant, Max Frolich, who has been in possession thereof since; that prior to the said foreclosure of said second deed of trust, the equity of redemption in said property had passed from Mattie J. Sallee to A. W. Nesbit, and that the same was cut out by said foreclosure, but that notwithstanding said Nesbit had thus lost all interest in the land, he executed on July 24, 1893, to H. P. Faris, as trustee for the Brinkerhoff-Faris Trust and Savings Company, two deeds of trust, one for fifteen thousand five hundred dollars, and the other for two thousand seven hundred and eighty-five dollars; that plaintiff's alleged right to the property is based upon and grows out of the second of said two deeds of trust, and that in consequence of all which the legal title is vested in the defendants and not in the plaintiff:
Second. That the said second deed of trust so made by said Nesbit, on July 24, 1893, was payable in certain named installments, and that the same was wholly without consideration and void; that said deed of trust covered one parcel on the east side of Indiana avenue...
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