Carson v. Blakey

• Citation: 6 Mo. 273
• Parties: CARSON, ADM'R OF STEPHENS, v. BLAKEY AND LOVE, ADM'RS OF ANDERSON.
• Decision Date: 30 June 1840
• Court: United States State Supreme Court of Missouri

6 Mo. 273

CARSON, ADM'R OF STEPHENS,

v.BLAKEY AND LOVE, ADM'RS OF ANDERSON.

Supreme Court of Missouri.

June Term, 1840.

ERROR TO THE CIRCUIT COURT OF MARION COUNTY.

T. L. ANDERSON, for Plaintiff in Error. A deed of mortgage with power to sell, legally enables the mortgagee to sell on failure of the mortgagor to pay the debt secured, and that such sale rests in the purchaser a valid title. 1 Pow. on Mort.; 18 Vesey, 344; 2 Cruise, 105, §§ 43 and 44; 27 Eng. Com. L. R. 268.

U. WRIGHT, for Defendant in Error. 1st. That under our law a mortgage, with a power of sale in mortgagee, is void. 2d. That the only method of obtaining title to mortgaged premises is, with us, by a sale under a petition for foreclosure.

TOMPKINS, J.

Carson, as administrator of Stephens, brought his action of ejectment against Anderson in his life-time; the death of Anderson being suggested on the record, Blakey and Love were made parties, as administrators. The judgment of the Circuit Court was given in favor of the defendants, and to reverse that judgment, Carson prosecutes this writ of error in this court. The evidence in the case is, that in the life-time of John Anderson, one George McDaniel became the security of said Anderson for the sum of one thousand dollars, and that Anderson wishing to secure said McDaniel from any loss on that account, executed to him a mortgage for the land here sued for, with a power to McDaniel himself, to sell the premises on certain conditions in the mortgage deed mentioned. McDaniel sold the land and Joseph Stephens, the plaintiff's intestate, became the purchaser. It is not contended that the conditions prescribed in the mortgage deed have not been complied with. The only contested point, is whether the mortgagor can consistently with law constitute the mortgagee a trustee for the purpose of selling this land, to raise money to pay the debt due to the mortgagee himself from the mortgagor. On the part of the defendants in error it is contended, 1st. That under our law a mortgage with a power of sale in the mortgagee is void. 2d. That the only method of obtaining title to the mortgaged premises is, with us, by a sale under a petition for a foreclosure. The act concerning mortgages, of February 18th, 1825, found in Digest of 1825, page 593, provides, that in all cases of mortgages of land, & c., where the mortgagee, his executors, administrators or assigns, shall file a petition in the office of the clerk of the Circuit Court of the county where the mortgaged premises lie, against the mortgagor, or his heirs, executors or administrators, &c., setting forth the instrument of writing containing the mortgage, and praying that the equity of redemption may be foreclosed, and the mortgaged premises sold to satisfy the amount then due, the clerk shall issue a summons requiring the defendant to appear, &c., the cause then proceeds, as do other causes in the Circuit...