Bush v. White

• Citation: 85 Mo. 339
• Parties: BUSH v. WHITE et al., Appellants.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

85 Mo. 339

BUSH

v.WHITE et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Saline Circuit Court.--HON. JOHN P. STROTHER, Judge.

REVERSED.

Draffen & Williams for appellants.

(1) The court erred in excluding the sheriff's amended deed dated May 3, 1867, from B. H. Hawpe, sheriff, to Wm. H. Trigg, and the deed from Trigg to defendant, Wade. The first sheriff's deed being defective, it was the duty of the sheriff to make an amended one. Thornton v. McKimmon, 48 Mo. 219. The omission of the word “door” in the amended deed was simply a clerical error and was immaterial. Strain v. Murphy, 49 Mo. 337; Buchanan v. Tracy, 45 Mo. 437; Davis v. Kline, 76 Mo. 310; Allon v. Sales, 56 Mo. 28; Wilhite v. Wilhite, 53 Mo. 71; Ellis v. Jones, 51 Mo. 180; Harnby v. Cramer, 12 How. Pr. 490; Warner v. Sharpe, 53 Mo. 598; Davis v. Peveler, 65 Mo. 189. Besides, the deed was amendatory of the one made in 1865, and the latter showed the sale was made at the court house door and the defendant offered to show by parol evidence that it was in fact so made. Moore v. Wingate, 53 Mo. 398; Gardner v. Tucker, 61 Mo. 428; Jones v.Carter, 56 Mo. 403. The recitals in the deed in regard to the executions were sufficient. The statute does not require the execution to be set out in full or in substance in the deed. The names of the parties to the execution, the date when issued, the date of the judgment, etc., are given, and this is all that is required. 1 R. S., 1879, sec. 2392; Stewart v. Severance, 43 Mo. 322; Groner v. Smith, 49 Mo. 318; Perkins v. Quigley, 62 Mo. 498. (2) When the amended deed was made it related back to the day of the sale and the deed of Trigg and Stephens, whether one of warranty or quit-claim, carried the interest Trigg had acquired by his purchase under the sheriff's sale. Mariner v. Porter. 50 Mo. 364; In re Quenzler, 70 Mo. 39. (3) If the possession of Wade was not originally taken in subordination to the mortgage, but was hostile to it in its inception, then it was unnecessary for defendant to show that actual knowledge thereof had been brought home to Bryant. The rule in regard to the change from a friendly to an adverse holding would not apply. Key v. Jennings, 66 Mo. 356; Miller v. Bledsoe, 61 Mo. 96; North v. Hammonds, 34 Wis. 425; Stevens v. Brooks, 24 Wis. 326. (4) Even if the sheriff's deeds were defective, they were competent to show color of title. Mansfield v. Pollock, 74 Mo. 185. (5) The court erred in declaring that Bush was a bona fide purchaser and could not be bound by any estoppel existing against his grantor. Actual payment is necessary to a purchaser for a valuable consideration. Paul v. Fulton, 25 Mo. 156; Bishop v. Scudder, 46 Mo. 472; Foster v. Holbert, 55 Mo. 22. (6) The plea of the statute of limitations was a good defence. After the lapse of ten years a mortgagee can neither in equity nor at law enforce his demand against the realty covered by his mortgage. Adair v. Adair, 78 Mo. 630; Rogers v. Brown, 61 Mo. 187; Cape Girardeau Co. v. Harbison, 58 Mo. 90; Hunter v. Hunter, 50 Mo. 445.

Yerby & Vance also for appellants.

(1) The court erred in excluding Sheriff Hawpe's deed to Trigg as evidence of title, because in the recitals “door” was left out after the word court house in describing place of sale, although appellant proved aliunde that said sale did take place at the court house door. Buchanan v. Tracy, 45 Mo. 437; Wilkerson v. Allen, 67 Mo. 502; Durette v. Briggs, 47 Mo. 356. (2) The court erred in not declaring the respondent barred under the statute of limitations, as the appellant held under Wm. H. Trigg, and Trigg under sheriff's sale made in 1865, under execution on judgment rendered in 1860, prior to Bryant's deed of trust, and if sheriff's deed was void, it was color of title and Trigg and his grantors, having taken possession under sheriff's deed, held adversely to Bryant, and having held openly, notoriously, uninterruptedly, and peaceably, claiming title for more than ten years, gave appellant title and the court should have so declared. Session Acts, 1863, page twenty-four, extending lien of judgment, authority of legislature to pass said act. Ellis v. Jones. 51 Mo. 181. Act retrospective and cuts out subsequent adverse interests. Riggs v. Goodrich, 74 Mo. 108, and authorities therein cited; Warner v. Veitch, 2 Mo. App. 459. That Wade's possession was an adverse one, see Hermann on Executions (1 Ed.) 511; Tucker's Commentaries (3 Ed.) top page 171, side page 176; same, top page 403, side page 413 and 414; Rogers v. Brown, 61 Mo. 195; Bobb v. Woodward, 50 Mo. 95; Ridgeway v. Holliday, 59 Mo. 444; Brady v. West, 60 Mo. 33; Key v. Jennings, 66 Mo. 367; The Lessee of Ewing v. Burnette, 11 Peters 52; The Lessee of Mercer et ux. v. Selden, 1 Howard 51, showing acts which establish adverse possession similar to this case. Hunter et al. v. Hunter et al., 50 Mo. 451, in which the court says, ten years' bar applies to all actions for the recovery of land or for the enforcement of trusts growing out of lands. (3) The court erred in not declaring Bryant's deed of trust from Reeves, dated in 1861, barred by the statute of limitations of ten years, there having been no credits and no recognitlon of said trust and no interest paid, and no possession of said premises by the trustee or cestui que trust within ten years, and that a sale under it was void, and that Bush, the respondent, acquired nothing by his purchase. 4 Kent's Com. (6 Ed.) 189; 2 Story's Eq. Jur. (9 Ed.) pp. 215-216, secs. 1028 a and 1028 b; also, same vol. p. 733, sec. 1520; 2 Perry on Trusts (2 Ed.) p. 488, sec. 858; Hughes v. Edwards, 9 Wheaton (U. S.) 497-498; Elmendorf v. Taylor, 10 Wheaton (U. S.) 168; Moreau v. Detchemendy, 18 Mo. 529; McNair v. Lott, 25 Mo. 190; McNair v. Lott, 34 Mo. 285; Hunter v. Hunter, 50 Mo. 451. The court will observe that though twenty years is in all these cases spoken of as fixing the bar, yet it is expressly said that the period which fixes the bar is that period which the statute fixes to bar an ejectment, which our statute fixes at ten years. (4) The court erred in deducting the time of the absence from the state of Reeves, the grantor in the deed of trust to Bryant, thereby making the time less than ten years, and preventing the bar of the statute, notwithstanding the deed of trust had run for upwards of eighteen years before the sale without recognition, and the appellant had been in peaceable possession for upwards of sixteen years, the exception in statute applying only to personal actions. Revised Statutes, sec. 3236; 5 Cent. Law Jour. 253; 2 Hilliard on Mort. (3 Ed.) p. 30, sec. 30.

L. W. Scott also for appellants.

(1) The court erred in permitting plaintiff to introduce evidence to show the absence of the mortgageor from the state, for the purpose of bringing the mortgagee's debt within the statute of limitations, since the debt was due before he left the state, and the land might have been resorted to afterwards. 2 Hilliard on Mortgages (3 Ed.) sec. 30; Eubanks v. Leveridge, 5 Cent. L. J. 253; Dunn v. Buckley, 56 Wis. 190; Teal v. Walker, 12 Cent. L. J. 439. (2) The court erred in admitting in evidence the deed from Bryant, mortgagee, to Bush, the plaintiff, for the reason that the mortgage upon which it was founded was, at the time of the pretended sale, a stale demand and one which a court of equity would not have sustained and enforced in a foreclosure suit. Smith v. Clay, 3 Brown's Ch. R. 639; Castner v. Walrod, 83 Ill. 171. (3) The court erred in holding that the omission in sheriff's deed, to Trigg, of the word “door” invalidated the deed and that it could not be supplied by parol evidence. Abbott's Trial Evid. 702; Wood v. Moorehouse, 45 N. Y. 368; Jackson v. Schaffer, 11 Johns. 513; McGoon v. Scales, 9 Wall. 23; Strain v. Murphy, 49 Mo. 337; Wilkerson v. Allen, 76 Mo. 592. (4) The court committed error in holding the act of March 23, 1863, unconstitutional and void as to Bryant's mortgage. Wood v. Messerby, 46 Mo. 255; Stewart v. Severance, 43 Mo. 322; Porter v. Mariner, 50 Mo. 364. The legislature had the power to enact the law extending the lien from three to five years. Ellis v. Jones, 51 Mo. 180. (5) The court erred in its declarations of law and its finding to the effect that it was necessary for the defendant, Wade, to show in evidence, not only that he “held and claimed to hold the land adversely to the mortgage title at least ten years before the institution of this suit, but that he must also show that notice of this adverse holding and claim was brought home to the mortgagee, Bryant, for that length of time before the suit.” 2 Hilliard on Mortgages, sec. 4; Cape Girardeau Co. v. Harbison, 58 Mo. 90; Anderson v. Baxter, 4 Or. 107; Christopher v. Sparks, 2 Jac. & W. 233.

Wallace & Chiles for respondent.

(1) There was no error in the court below in admitting in evidence the deeds made by Bryant, mortgagee, to plaintiff. Acts 1881, 171. (2) The sheriff's deed offered in evidence by plaintiff was rightly admitted. It was offered to show the title and only title of Trigg and Stephens in the land at the time they made their deed of June 6, 1866, being the equity of redemption of Reeves, and this is the claim of title and only claim of title under which defendant, Wade, entered into and possessed said land. Even if Trigg acquired any other title or interest by a subsequent sheriff's deed, which is denied, still it would not pass to Wade by such former deed of date June 6, 1866, which is but a quit-claim deed and does not pass an after acquired title. Bogy v. Shoab, 13 Mo. 365; Valle v. Clemens, 18 Mo. 486. Gibson v. Chouteau, 39 Mo. 536; Butcher v. Rogers, 60 Mo. 138; Herman on Estoppel, 306; Tyler on Ejectment, 530-540; Mayor v. Buckley, 51 Mo. 227. A title to land purchased at a sheriff's sale can only pass by the purchaser's obtaining a deed. Leach v. Konig, 55 Mo. 451; White v. Davis, 50 Mo. 33. (3) There was no error committed by the court...