Board of Trustees of Westminster College v. Fry

• Decision Date: 22 December 1905
• Citation: 91 S.W. 472,192 Mo. 552
• Parties: BOARD OF TRUSTEES OF WESTMINSTER COLLEGE v. FRY et al.
• Court: Missouri Supreme Court

91 S.W. 472

192 Mo. 552

BOARD OF TRUSTEES OF WESTMINSTER COLLEGE v. FRY et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1905.

1. MORTGAGES — FORECLOSURE — DECREE — EFFECT.

A decree denying foreclosure of a mortgage without any attempt to discharge the land of the lien thereof did not affect such lien as an incumbrance prior to other liens executed after the decree, but before the time for filing a bill of exceptions on appeal from such decree had expired.

2. LIS PENDENS — TERMINATION OF ACTION — PURCHASERS PENDENTE LITE.

Where incumbrances under which one of the defendants claimed were executed before the expiration of the time for filing a bill of exceptions in a suit to foreclose a prior mortgage had expired, such subsequent incumbrances would be regarded as having been executed pendente lite.

3. SAME — BONA FIDE PURCHASERS — EVIDENCE.

After an erroneous decree had been rendered denying foreclosure of a mortgage, but before the time for the filing of the bill of exceptions had expired, the holder of the title executed a deed of trust to his attorney in the foreclosure suit to secure a large part of his fee in obtaining such judgment; the attorney having the day previously examined and approved a bill of exceptions in such case. Another deed of trust was also executed before the time for filing such bill had expired, to secure a pre-existing debt to a bank, without any new consideration; and defendant W., with full notice of such facts, purchased such deeds of trust and purchased property on foreclosure thereof. Held that, the decree denying foreclosure of the prior mortgage having been reversed, defendant W. was not entitled to protection against the lien of such mortgage as a bona fide purchaser.

Appeal from Circuit Court, Morgan County; James E. Hazell, Judge.

Action by the Board of Trustees of Westminster College against Edward J. Fry and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

Wm. Forman and Gibbs & Knipmeyer, for appellants. A. L. Ross and W. M. Williams, for respondent.

GANTT, J.

This is an action of ejectment, in which both parties claim title to the land in controversy under John C. Peirsol. The plaintiff purchased the land at a sale under a decree of the circuit court of Morgan county, rendered in obedience to the mandate of this court in the case of Westminster College v. Peirsol et al., 161 Mo. 270, 61 S. W. 811, foreclosing a mortgage executed on the 1st day of April, 1893, by said Peirsol and wife. Ouster is laid as of October 16, 1901. Edward J. Fry was originally the only defendant. On December 9, 1901, Fry filed his answer, admitting that he was in possession of said lands as tenant of Peter George Woods, and denied the other allegations of the petition. Upon the same day, by consent, Woods was made a party defendant, and filed his answer. Randolph R. Fry was in possession of the land at the time the above mentioned foreclosure suit was begun, and was made a defendant in said action. He defended on the ground that he had a prior right to the land under a contract with said Peirsol, dated on the 1st day of February, 1893. It appeared, however, in said suit, that the deed made to him by Peirsol recited upon its face that it was subject to the deed of trust under which plaintiff in this suit purchased the land, and, while he denied that he had ever accepted this deed, it was shown that he had executed a deed of trust upon the land, in which he stated that said deed of trust was subject to the lien of the deed of trust executed by Peirsol on the 1st day of April, 1893, and he made payments on the debt secured by the latter instrument. The facts developed in the foreclosure suit are fully set out in the opinion of this court in Westminster College v. Peirsol et al., 161 Mo. 270, 61 S. W. 811. The circuit court heard the suit to foreclose the Peirsol mortgage on the 17th of December, 1897, and took the case under advisement until the 21st of April, 1898, at which time judgment was entered for the defendants. The Peirsol mortgage of April 1, 1893, was not set aside or vacated by this judgment, nor was there any affirmative relief granted to said Randolph R. Fry. There is nothing in the judgment declaring that his right to the land was superior to the Peirsol mortgage under which plaintiff claims, nor does it in any way attempt to interfere with the lien of said mortgage. It simply recites that the court found the issues for the defendants, "and against the petition of the plaintiff," and ordered that plaintiff take nothing by its writ and that defendants recover their costs, etc. That judgment as above stated was rendered April 21, 1898. The plaintiff filed a motion for a new trial, which was overruled, and the court by an order of record gave plaintiff leave to file its bill of exceptions on or before the 10th of August, 1898. The bill of exceptions was filed on the 21st of June, and on the 29th of June, 1898, a writ of error was sued out from this court, returnable to the October term, 1898, and notice of its issuance was served upon the defendants on the following day. On the 22d day of June, 1898, Randolph R. Fry and wife executed to Joel E. Hubbard, trustee, their deed of trust on the lands in suit to secure William Forman the payment of Randolph Fry's promissory note to said Forman for $1,100, payable two years thereafter. This deed of trust was filed for record June 22, 1898, at 4:32 o'clock p. m. Randolph Fry and wife also executed a deed of trust on the same lands to James McNair, trustee, to secure the payment of Fry's several promissory notes payable to the Bank of Versailles, which aggregated the sum of $6,143.40. This deed of trust, which was subject to Forman's deed of trust, was filed for record on the same day at 4:35 o'clock p. m. on March 26, 1905. This court rendered its judgment in the case of Westminster College v. Peirsol et al., reversing the judgment of the Morgan circuit court, and remanded the cause, with directions to the Morgan circuit court, to enter up a decree in favor of the plaintiff therein foreclosing the equity of the redemption of the mortgagors and those claiming under them in the land in question. On April 20, 1901, the circuit court of Morgan county, in pursuance of said mandate, rendered judgment for Westminster College for the sum of $12,047.65, and decreed that said deed of trust be foreclosed, and the equity of redemption of John C. Peirsol and his wife Randolph Fry, and W. B. A. McNutt, defendants therein, should be foreclosed and said lands sold by the sheriff of Morgan county, Mo., to satisfy said indebtedness together with the interest thereon from the date of judgment, and with judgment over against said Peirsol for any remaining deficit. On July 22, 1901, the lands in controversy were sold under a deed of trust in favor of William Forman, and Forman became the purchaser and received the deed of the acting trustee. This deed was filed for record July 22, 1901, at 5 o'clock p. m. On July 22, 1901, the same land was also sold under the deed of trust to the Bank of Versailles, and Peter George Woods became...