Burnside v. Wayman

• Decision Date: 29 February 1872
• Citation: 49 Mo. 356
• Parties: JOHN BURNSIDE, Respondent, v. JOHN WAYMAN, Appellant.
• Court: Missouri Supreme Court

49 Mo. 356

JOHN BURNSIDE, Respondent,

v.JOHN WAYMAN, Appellant.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Buchanan Circuit Court.

Wm. H. Sherman, for appellant.

Thomas & Ramey, and Ben. Loan, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The court overruled a demurrer to the plaintiff's petition, and gave the defendant time to answer, but no answer was filed, and in default thereof judgment was rendered. Afterward defendant filed a motion in arrest of judgment, on account of the insufficiency of the petition, which motion was overruled and the defendant appealed, and the action of the court in overruling the motion in arrest is the only question before this court.

The petition contained four counts. The first count sought equitable relief, and prayed for a remedy on account of a defect in a deed of trust. It seems when the trust deed was made no trustee was selected, but a blank was left in which to insert the name of some suitable person, and the grantor gave the cestui que trust authority to appoint a trustee and fill up the blank. The cestui que trust neglected to make any appointment and assigned the note and deed to the plaintiff. The object, therefore, of the plaintiff was to have the deed treated as a mortgage, and the property subjected to the payment of the debt. The second count was for the foreclosure of a mortgage which plaintiff held on the same piece of property; and the third and fourth counts were to recover for certain charges which plaintiff had been compelled to pay, which were liens on the property, for the purpose of protecting his title.

It is contended that no recovery could be had or relief granted on the first count because no grantee was named in the deed of trust, and that in consequence thereof the instrument was void and no title was conveyed. But I think otherwise. Whatever may have been determined in some of the old books, the better doctrine is against such a position.

In a recent case in the Supreme Court of the United States (Drury v. Foster, 2 Wall. 24) it was adjudged that a paper executed under seal for the husband's benefit, by husband and wife, acknowledged in separate form by the wife and meant to be a mortgage for her separate lands, but with blank left for the insertion of the mortgagee's name and the sum borrowed, and to be filled up by the husband, was no deed as respected the wife, when afterward filled up by the husband and given to a lender of money. But the judgment was placed upon the ground that the wife...