Benton v. O'Fallon

• Decision Date: 31 July 1844
• Citation: 8 Mo. 650
• Parties: BENTON v. O'FALLON, EX'R OF MULLANPHY.
• Court: Missouri Supreme Court

8 Mo. 650

BENTON

v.O'FALLON, EX'R OF MULLANPHY.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

SPALDING and TIFFANY, for Appellant. 1. The interest that Benton had in the lot in question, embraced in the mortgage, was not vendible on execution. Geyer's Digest, 307-8; old Rev. Code, 593-5; 12 Mass. R. 387. That a statutory right to redeem not vendible on execution, old Rev. Code, 462, shows alienee subject to prior judgment. 2. Incumbrance is held extinct by merger, or not, according to justice and equity. 6 Johns. Ch. R. 395. 3. The lot west of the mortgaged property ought to be conveyed to Benton. 1 Mad. Ch. R. 362, 368, 376. 1st. Possession is not tenancy: no rent stated: no possession of lot by Mullanphy. 2nd. Mortgage is paid off by the purchase by Mullanphy; what, then, has become of the $250? Mullanphy cut off the right to redeem by sale. 4. Laches does not prevent continued possession by Benton.

H. R. GAMBLE, for Appellee.

NAPTON, J.

This was a suit in chancery, to redeem a mortgage upon a lot in St. Louis, commenced in the Circuit Court, and afterwards transferred to the Common Pleas of St. Louis. The original bill was filed in 1837; it stated, that complainant, to secure to Mullanphy the payment of $2,000, payable twelve months after date, with interest at ten per cent. per annum, payable semi-annually, mortgaged to him, in June, 1819, the lot in question; that Mullanphy died in 1833, leaving as his executor and heirs the parties defendant. The bill alleged, that the complainant, ever since the execution of the mortgage, has remained in possession; that the interest upon the mortgage debt has been regularly paid to said Mullanphy during his life-time; that, since his death, and in June, 1837, he tendered to O'Fallon, the executor of said Mullanphy, the principal and interest due on said mortgage, for the purpose of redeeming, but said O'Fallon refused to accept the same.

The defendants answered, denying that the complainant had paid the interest on the mortgage debt, and alleging that in November, 1824, a decree of foreclosure was made in the Circuit Court of St. Louis, ascertaining the debt and interest as amounting to $3,083 34. The answer further alleged, that in March, 1826, the Bank of Missouri recovered a judgment against complainant for $7,076 14; that execution issued on this judgment, 8th February, 1827; that a levy and sale followed, in accordance with law, and the sheriff, by deed, dated April 2, 1827, conveyed to Mullanphy all complainant's interest in said lot. The answer admits that the said complainant, Benton, has remained in possession of the property ever since the mortgage was executed; but insists that such possession was in the character of tenant, ever since the purchase, by Mullanphy, under the execution.

At the November term, 1838, the complainant filed an amended bill, in which the judgment in favor of the Bank against Benton is admitted, and the execution, levy and sale, but charges that said judgment, execution and sale, were irregular and void; that there was no such corporation existing as the President, Directors and Company of the Bank of Missouri, the charter having expired by non-user, &c.

At the November term, 1840, the bill was again amended at the instance of the complainants; this last amended bill set forth the mortgage and proceedings to foreclosure in 1824, judgment, &c., but alleged that no execution ever issued thereon; that, after the rendition of the judgment, to wit: on 10th November, 1824, complainant and Mullanphy had a settlement, and that said Mullanphy, having purchased at sheriff's sale, a lot of ground, lying west of and adjoining the mortgaged premises, then proposed to sell the same to complainant, as being a convenient appendage to said complainant's mansion-house, said mansion-house being the same property mortgaged, for the sum which he (Mullanphy) had paid for the same; that, at the same time, said Mullanphy agreed, that the said complainant might redeem the said mortgaged premises, and that, when the complainant should redeem said premises, he, Mullanphy, would convey to him the lot of ground lying west and adjoining to the same; that the complainant then paid to Mullanphy the sum of $250, the price asked by him for the lot lying west of the mortgaged promises, and that said Mullanphy further agreed, that if the complainant did not redeem, he should be credited with the $250. Bill charges, that said sum of $250 was never credited, &c. that said Mullanphy, as evidence of the aforesaid agreement signed a memorandum, entered by the complainant in his private memorandum book, in the words following: “November 10th, 1824. This day adjusted all accounts with Mr. John Mullanphy, and paid him all outstanding balances, the mortgage in suit, and his assumpsit, to convey to me the lot west of me, on my paying up the mortgage, or crediting me with $250 if I did not, being reduced to writing, and closing our business.

JOHN MULLANPHY.”

The amended bill further charges, that said lot lying west, &c., in equity belongs to complainant; and avers, that, by the terms of the above agreement, the complainant was permitted to redeem the mortgaged premises for an indefinite time; and complainant avers, that, at the time of the settlement aforesaid, he paid to said Mullanphy all the interest upon the mortgage debt up to that time, and hath since paid the same interest to the present time: complainant not only, then, claims a right to redeem the mortgaged premises, but prays a conveyance of the lot west, &c.

The defendants answered the amended bill by stating their ignorance of the agreement set out, relying on the statute of Frauds, if such agreement was made, and alleging that such agreement, if made, was abandoned by the parties, since the complainant had long paid rent for the premises.

On the hearing, the complainant gave in evidence the record of the foreclosure; a deed to Mullanphy for the lot west of the mortgaged property, and the memorandum signed by Mullanphy, as set out in the amended bill.

The defendants proved that complainant had resided on the mortgaged premises during his residence in this State, and had occupied no other house of Mullanphy's and produced a letter from complainant, as follows:

“WASHINGTON, December 10th, 1832.

DEAR SIR:--I enclose you a certificate of deposite to your credit, in United States Branch Bank in this city, for the rent of the current year, and continue the place for the next year.

Yours, respectfully,

TMOMAS H. BENTON.

Mr. JOHN MULLANPHY, St. Louis.”

The defendants also gave in evidence, the judgment in favor of the bank, the execution, sale, and sheriff's deeds, under which they claimed the property. Upon this testimony, the bill was dismissed, and the complainant appeals.

The claim of the appellant is based upon the alleged invalidity of the sheriff's sale in 1827, and upon the memorandum, signed by Mullanphy, which, it is contended, gave Benton an indefinite time for redemption.

The first proposition depends upon the saleability of an equity of redemption under execution, in 1827; and this question, since the case of McNair and others vs. Mullanphy's Executors and Heirs, has been thought to be settled. In that case, the saleability of an equity of redemption under fieri facias, by virtue of the act of 1807, was deliberately examined, and the legality of such sales sustained, after an elaborate discussion at the bar, and with a knowledge of the weight of respectable authority arrayed against the position. The reasons which influenced the court, in its decision, were fully detailed...