Bray v. Campbell

• Decision Date: 09 January 1888
• Citation: 28 Mo.App. 516
• Parties: MARTHA BRAY, Appellant, v. GEORGE C. CAMPBELL AND I. H. JULIAN, Administrator of Estate of NATHAN BRAY, Respondents.
• Court: Kansas Court of Appeals

28 Mo.App. 516

MARTHA BRAY, Appellant, v. GEORGE C. CAMPBELL AND I. H. JULIAN, Administrator of Estate of NATHAN BRAY, Respondents.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

The case is stated in the opinion.

JOSEPH CRAVENS, for the appellant.

I. The record shows that Nathan Bray, on the twentieth of September 1873, sold the land known as " Hunter Farm," in Jasper county, to J. R. and George C. Campbell for twenty thousand dollars, of which twenty-five hundred dollars were paid at the time, in real estate, and the purchasers gave their notes for $17,500, being the balance, and a mortgage on the land to secure the notes. In September, 1875, these notes and the mortgage were taken up, and in lieu thereof other notes and a deed of trust were given, and also a note for seventeen hundred and fifty dollars accrued interest, which was not put into the trust deed, but was afterward sold to Holland by Bray. On May 11, 1876, Morton loaned Bray four thousand dollars, and the notes secured by the trust deed were delivered to Morton as collateral security. At the time plaintiff's mortgage was not recorded and Morton had no notice of it. Afterward Bray's indebtedness to Morton was merged into judgments, and on the twenty-eighth day of March 1879, they were allowed and classed as demands against Bray's estate. Morton, on the twenty-third day of September, 1879, assigned this indebtedness to Holland " without recourse" and delivered to him the Campbell notes. At this time plaintiff's mortgage was on record and Holland had notice of it. At the trustee's sale Holland bought and by quit-claim deed conveyed the land back to defendant, Campbell, for twelve thousand dollars. Now it is claimed, and the circuit court so held, that as Morton held the Campbell notes as security, without notice of plaintiff's mortgage, Campbell's title from Holland was purified by the notes having been in the hands of Morton and it came to defendant, George Campbell, without spot or blemish when it was sold by the trustee on account of his failure to pay his notes, which were secured by his trust deed.

II. An innocent purchaser is one who buys and pays for property, and when that is the defence it must be so alleged and proved. Hulsa v. Hulsa, 8 Mo. 303; Paul v. Fulton, 25 Mo. 156; Aubuchon v. Bender, 44 Mo. 560; Wallace v. Wilson, 30 Mo. 335; Bishop v. Schneider, 46 Mo. 472; Rice v. Bunce, Adm'r, 49 Mo. 231.

III. Morton, by taking the Campbell notes as collateral security, acquired no estate in the land mortgaged, but only an equitable right in the security. Kennett v. Plummer, 28 Mo. 142; Potter v. McDowell, 43 Mo. 97; Woods v. Hildebrand, 46 Mo. 284; Peas v. Iron Co., 49 Mo. 124. He took only the interest in the security Bray had. Linville v. Savage, 58 Mo. 428; Potter v. McDowell, supra.

IV. A party who takes a quit-claim deed with a full knowledge of all the facts, as Campbell did in this case, is not an innocent purchaser. Austin v. Loring, 63 Mo. 19; Stoffle v. Schroeder, 62 Mo. 147.

E. O. BROWN and C. W. THRASHER, for the respondents.

I. On the record in this case the court below committed no error, and the judgment should be affirmed. (1) J. T. Morton and C. B. Holland, as shown by the record, were bona-fide purchasers for value of the notes secured by the deed of trust from the Campbells to J. C. Cravens, trustee, under which defendant claims, without notice of the mortgage sued on, and the defendant, George C. Campbell, taking title from said C. B. Holland, takes also as a bona-fide purchaser, and is protected from the mortgage sued on, whether he had knowledge of such mortgage or not at the time he took said title. Story's Eq. Jur. [4 Ed.] secs. 409, 1503 a; 1 Jones on Mort., secs. 560, 834; 1 Daniel on Neg. Inst. [3 Ed.] sec. 824; Halsa v. Halsa, 8 Mo. 308; Lemay v. Poupenez, 35 Mo. 71; Funkhauser v. Lay, 78 Mo. 458; Craig v. Zimmerman, 87 Mo. 475; Anderson v. McPike, 86 Mo. 293; Bumpus v. Platner, 1 Johns. Ch. 213. An assignee of a note will be subrogated to all the rights and equities of his assignor. McGuire v. Peay, 58 Mo. 56; Logan v. Smith, 62 Mo. 455; Crow v. Andrews, 24 Mo.App. 159. (2) The quit-claim deed from C. B. Holland to the defendant, Campbell, was sufficient and effective to transfer to said defendant, Campbell, all the rights of said Holland in the premises conveyed. Wilson v. Albert, 89 Mo. 537.

II. The court below committed no error in refusing the declarations asked by appellant.

ELLISON J.

This action was brought to foreclose a mortgage executed by Nathan Bray in his lifetime, in conjunction with the plaintiff, who was then his wife, to secure a note of two thousand dollars given to one Abner Corey. Plaintiff, in a way not shown by the evidence, becomes the holder of this note and brings this action. The court gave judgment for defendants, and she appeals. On Bray's death, Julian was appointed his administrator. The mortgage in suit was not recorded for some time after its execution. After giving this mortgage Bray sold the land included therein to James R. Campbell and defendant, George C. Campbell, and took...