Bobb v. Taylor

Decision Date30 March 1916
Docket NumberNo. 17885.,17885.
PartiesBOBB v. TAYLOR.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by Clara P. Bobb against Lucy G. Taylor. From a judgment dismissing the petition, plaintiff appeals. Judgment reversed, and cause remanded.

T. J. Rowe, of St. Louis, for appellant. S. T. G. Smith and Henry A. Baker, both of St. Louis, for respondent.

BOND, J.

I. This suit to foreclose a deed of trust was begun January, 1912. The petition alleges: That plaintiff was the widow of John H. Bobb. That from the 17th of September, 1884, until the 10th of March, 1910, when her husband died, she was a married woman. That on the 12th of June, 1884, defendant gave her note due one year thereafter for $30,000, payable to the husband of plaintiff, who, on October 1, 1884, indorsed and delivered the same to plaintiff, who is now the owner of said note and which is secured by a deed of trust executed by defendant when the note was given, which deed of trust recites that the said note was for the purchase money due from defendant to John H. Bobb for the conveyance by him of the land described in the deed of trust to the defendant. The deed of trust was executed to Wm. C. Jamison, who has since died, and contained the usual covenants. That nothing has been paid on said note except $5 as appears from an indorsement thereon on the 2d of May, 1895, signed by defendant. The petition then prays for a strict foreclosure barring the equity of redemption to satisfy the debt and interest secured by the deed of trust and for general relief. The answer is a general denial and a plea of the statute of limitations as to the note, and that the indorsement thereon of the payment of $5 was not made or authorized by the defendant; wherefore it is averred the note is avoided and that no consideration was given for the note and deed of trust and nothing paid thereon. The answer further averred that plaintiff as the holder of said note, in consideration of the receipt of enough money to pay the same, executed releases of the lien of the deed of trust to the purchasers of a portion of the lands conveyed therein. The reply was a general denial. The evidence shows that John H. Bobb executed a quitclaim deed on the 12th of June, 1884, to the defendant, wherein he conveyed certain lands to her which were described separately in four clauses of the deed; that the portions included in the third and fourth descriptions are still subject to the deed of trust which was executed by the defendant to secure her note given for the purchase money; that said portions are known as the Burd place and contained about 30 acres of land; that defendant quitclaimed this tract of land to Miss M. Degroot, who, in turn, quitclaimed it to the plaintiff; but that defendant has been in the actual possession thereof over 20 years and claims to hold said lands adversely, but has never paid any taxes during that period and never paid anything on the note; and that she never wrote nor certified the indorsement thereon purporting to show a payment of $5. The evidence shows the plaintiff has paid the taxes on the property in question. Upon consideration of the evidence, the trial court dismissed plaintiff's petition, from which she has duly appealed.

II. Appellant became the owner of the debt secured by the deed herein sought to be foreclosed, by the indorsement and delivery of the note evidencing that debt by the payee (her husband), in 1884. Her coverture lasted until 1910, when her husband died. This suit was brought in 1912. It necessarily follows that the debt was not barred by the statute of limitation of ten years, for that was arrested by her disability until two years before this action was begun. Revised Statute 1909, § 1894; Lindell Co. v. Lindell, 142 Mo. 61, 43 S. W. 368.

Neither was the deed of trust affected by the act of 1891 (Laws 1891, p. 184), now section 1892 of the revision of 1909, for that act does not impair the vested rights of parties to mortgages or deed of trust which were executed, as in this case, before the act was passed, provided the obligations secured by them were not barred at the time of the enactment of 1891. Morrison v. Roehl, 215 Mo. loc. cit. 554, 114 S. W. 981, and cases cited; Bumgardner v. Wealand, 197 Mo. loc. cit. 436, 95 S. W. 211, and cases cited; Martin v. Teasdale, 212 Mo. 611, 111 S. W. 511, and cases cited. It follows that neither the debt nor the deed of trust securing it were open to the defense of the statute of limitations made in the answer of defendant in this case.

III. It is, however, insisted by the defendant that, independently of the defense of the statute of limitations, a...

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