Bollinger v. Chouteau

• Decision Date: 31 October 1854
• Citation: 20 Mo. 89
• Parties: BOLLINGER et al., Appellants, v. CHOUTEAU et al., Respondents.
• Court: Missouri Supreme Court

20 Mo. 89

BOLLINGER et al., Appellants,

v.CHOUTEAU et al., Respondents.

Supreme Court of Missouri.

October Term, 1854.

1. A judgment of foreclosure against a mortgagor who was dead at the commencement of the suit, is void.

2. An adverse possession by a mortgagee, under the statute of limitations, to be a defence against a suit brought by the mortgagor to redeem, must at least be an actual possession. Payment of taxes on wild land is not sufficient.

3. A mortgagee against whom a suit is brought to redeem cannot defend upon the ground of the staleness of the claim, unless the facts would constitute a bar in equity.

4. A mortgagee in possession, upon a bill by the mortgagor to redeem, will be allowed for all permanent and useful improvements, deducting rents and profits, and for all taxes paid.

Appeal from Jefferson Circuit Court.

The case is stated in the opinion of the court. It was orally argued by Mr. Noell and Mr. Fox, for appellants, and Mr. Polk and Mr. Whittelsey, for respondents.

Noell and Fox, for appellants, made the following points:

1. The proceedings of foreclosure set up by defendants as a bar to the redemption demanded by plaintiffs were void, because Jacob Bollinger, who was made defendant, was then dead, and the suit should have been instituted against his heirs. (Act of 1807, tit. Mortgage. Russell v. Mullanphy's heirs, 4 Mo. 329-30; 2 Summer's C. C. R. 401; 12 Mo. 603.) 2. The right to redeem in this case was not barred by limitation or lapse of time, there being no actual possession of the mortgaged premises until 1837. (Moore v. Cable, 1 Johns. Ch. Cases, 385; 2 Cruise's Dig. 140; 2 Vernon, 377; 5 Brown's Par. Cases, 307.) 3. The only acts of ownership shown by the defendants prior to 1836, were the redemption of the land from the state to which it had been forfeited for taxes, and this act was not inconsistent with the character of mortgagees. As mortgagees, they were interested in seeing that their security was not lost. (Wells v. Morse, 2 Vern. 9; Dexter v. Arnold, 3 Sumner, 152; 9 Dana, 235; 3 Sumner, 476; Morgan v. Morgan, 10 Georgia, 297.)

Polk and Whittelsey, for respondents, relied upon the following, among other points:

1. The statute of limitations must be considered as having run against the claim asserted by the plaintiffs. Chouteau and Soulard, after the foreclosure in 1821, paid taxes on the land, and exercised all the possession over it that is usually exercised over wild land. It does not appear that the heirs of Jacob Bollinger were minors, or laboring under any disability at the time of his death. (Hughes v. Edwards, 9 Wheat. 489; Demarest v. Wynkoop, 3 Johns. Ch. 129; Slee v. Manhatton Co. 1 Paige's Ch. 148; Fenwick v. Macy, 1 Dana, 279; 14 Mo. 437; 17 Serg. & Raw. 350; 7 Watts, 565, 580; 3 Watts, 69; 10 Serg. & R. 306; 1 S. & R. 111; 2 S. & R. 436; 7 Watts, 35; 11 Peters, 41; 6 Peters, 513; 10 Peters, 442; 2 S. & R. 436.) 2. The plaintiffs' claim is antiquated and stale, and ought not to be entertained. (2 Story's Eq. p. 503, § 529; 1 Fonblanque, ch. 4, § 27, and notes; Craig v. Perry, 3 Mo. 516; 10 Pet. 177-225; Smith v. Clay, 3 Bro. Ch. 640; 2 Jac. & Walk. 141; 2 Younge & Coll, 662-678-81; 2 Sch. & Lef. 637.) 3. Under the facts and circumstances of this case, it would be inequitable to allow the representatives of the mortgagor to redeem. (Powell on Mort. (3d ed.) p. 136, 143; Cowp. 601; 1 Rep. in Ch. 170; 1 Vern. 244; 3 Salk. 84. Meyer v. Campbell, 12 Mo. 603; 1 Story's Eq. 75, 18 J. R. 144, 288, 544; 10 Peters, 177; 6 Wheaton, 541; 1 Dessaus, 160; 2 Dessaus, 582.) 4. The judgment of foreclosure in favor of Chouteau and Soulard was not void, but at most only voidable, and cannot be objected to collaterally in this suit. The fact that Bollinger was dead does not render it void, be cause it was a proceeding in rem. (See 1 Terr. Laws, 182; Downing v. Palmater, 1 Monroe, 66; McNair v. O'Fallon, 8 Mo. 188, 204; 2 Hare & W. Lead. Cases, 734, 737; 12 Mo. 238; 16 Mo. 173; 4 Watts, 278; 16 Mo. 331; 11 Mo. 295.)

RYLAND, Judge, delivered the opinion of the court.

This is a petition by the heirs of Jacob Bollinger to be permitted to redeem a tract of land purchased by their ancestor of Chouteau and Soulard, and for which said Chouteau and Soulard executed their deed to said Jacob Bollinger; and afterwards, on the same day, the said Bollinger, having given his notes for the purchase money, executed the mortgage in question on the same land, in order to secure the payment of the purchase money to the said grantors, Chouteau and Soulard. The purchase was made and deed executed, and mortgage and notes given in March, 1817. The notes falling due at different times according to the stipulated credit given, and none of the money being paid, the said Chouteau and Soulard filed their petition in the Circuit Court of Jefferson county, on the 21st August, 1821, to foreclose the mortgage and to have the land sold to pay the debt. The sheriff returned that the de fendant was not found. At the April term, 1822, of said court, an order of publication was made. At the August term, it appearing that publication had been duly made, a judgment by default was entered, and the court ordered a sale of the mortgaged premises.

This order was renewed at the December term, 1823, and the land was sold by the sheriff in January, 1824; Chouteau and Soulard became the purchasers for some two hundred and ten dollars.

The facts agreed upon the record show that said Jacob Bollinger was dead at the commencement of the suit to foreclose the mortgage, and that letters of administration were granted on his estate in Cape Girardeau county, in October, 1818; that said Jacob Bollinger resided in Cape Girardeau county previously to his death.

The court below found that the proceedings to foreclose the mortgage by Chouteau and Soulard, were in good faith; that after the purchase by said Chouteau and Soulard, one Cowen in 1831, claiming to have purchased one-half of said land from Chouteau, made a survey of the exterior lines of the tract and run a centre line for the purpose of dividing said land; that, from the year 1826, the said land was assessed in the name of Chouteau and Soulard, and that they and their representatives paid the taxes on said land at Jefferson City until 1836, when said land was subdivided and sold in partition. Since the year 1837, the land has been in the actual occupation of the defendants, who are now in possession, claiming title to the same, in good faith, and without notice of the death of said Jacob Bollinger or of any claim by his heirs. The defendants have made, under their title, on said land, valuable improvements, amounting to $30,000 or $25,000. The court finds that Jacob Bollinger never had actual possession; that, at the date of the sale, in 1817, the land was of no greater value than the sum mentioned in the mortgage, $14,929 92; that, by means of the improvements and growth of the country, said land has risen in the last few years greatly in value.

Upon this finding, the court held that the plaintiffs were not entitled to redeem. Although the judgment of foreclosure mentioned may be declared wholly void and irregular, having been obtained without notice yet, upon the lapse of thirty-six years since the execution of the mortgage, no part of the purchase money having been paid, and the property, in consequence of the growth of the country, and the valuable improvements put thereon by the persons now in possession, having greatly increased in value, the court below considered it unjust and inequitable to allow redemption, and rendered judgment for defendants.

The plaintiffs made the necessary motions for a review of the finding of the facts, as well as for a review of the declarations of the law arising thereon, which being overruled and excepted to they bring the case here by appeal.

1. Two points present themselves by this statement of the facts which will require the consideration of this conrt. The first is in regard to the proceedings to foreclose the mortgage by Chouteau and Soulard in 1821. In the opinion of this court, there can be no doubt as to the irregularity of these proceedings. Jacob Bollinger, against whom the proceedings were commenced, was dead some years before the plaintiffs filed their petition. Administration had been granted upon his estate in Cape Girardeau county where he had resided in 1818. The summons issued against him alone not his father. This whole proceeding then was irregular. The judgment is consequently void. Indeed, the court below considered this judgment void, and argumentatively found it to be so. A suit brought against a dead man will not authorize the court to render judgment against him. The plaintiffs in that petition should have brought the...