Chiles v. Wallace

• Decision Date: 31 October 1884
• Citation: 83 Mo. 84
• Parties: CHILES, Appellant, v. WALLACE et al.
• Court: Missouri Supreme Court

83 Mo. 84

CHILES, Appellant,

v.WALLACE et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Boggess & Moore for appellant.

(1) The averments in the answer do not state any contract, agreement or covenant, nor any good consideration for either. Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Mastin v. Halley, 61 Mo. 196; Pier v. Heinrichoffer, 52 Mo. 333; Bayse v. Ambrose, 32 Mo. 484. (2) The court erred in refusing the declarations of law asked by plaintiff and giving the 4th one asked by the defendants. The court's action precluded the possibility of plaintiff's recovery and justified his taking his non-suit. (3) The court, also, erred in giving defendants' second declaration of law. Jones on Mortgages, sec. 434; Price v. Brayton, 19 Ia. 309; Adams v. Beadle, 47 Ia. 439; Maples v. Milon, 31 Conn. 598; McIlvain v. Harris, 20 Mo. 457; Pratt v. Coffman, 27 Mo. 424. A purchaser at a foreclosure under a mortgage is entitled to the crops growing at the time of sale. Jones on Mortgages, sec. 697; Shepard v. Philbrick, 2 Den. 174; Downard v. Groff, 40 Ia. 597; Lane v. King, 8 Wend. 584. If there was a license to take the crops it was revocable at the pleasure of the licensor. Fuhr v. Dean, 26 Mo. 116; Deslodge v. Pearce, 38 Mo. 588. (4) A mortgageor cannot make a lease or other conveyance of the mortgaged property which will affect the mortgagee's rights. Jones on Mortgages, sec. 676; McDermott v. Burk, 16 Cal. 580. The mortgageor is not entitled to emblements after forfeiture. Lane v. King, 8 Wend. 584; Downard v. Groff, 40 Ia. 597. The deed of a purchaser at a sale under a mortgage relates back to the date of the mortgage. Lowell v. Schenk, 24 N. J. Eq. 80. All purchasers are bound to take cognizance of the rights of the mortgagee. Jones on Mortgages, secs. 453, 454, 688; Hoskins v. Woodward,45 Pa. St. 42; Gooding v. Shea, 103 Mass. 360.

C. O. Tichenor and E. P. Gates for respondents.

A mortgagee can make a valid agreement with a third party, or so act as to prevent him for the time being from foreclosing the same. Moss v. Green, 41 Mo. 389; Hudson v. Busby, 48 Mo. 36; First Nat. Bk. v. Leavitt, 65 Mo. 562; Corrigan v. Detsch, 61 Mo. 290. Regarding the right to remove the nursery stock as a mere license, plaintiff could not revoke it under the circumstances of this case. Baker v. Ry., 57 Mo. 272; Rerick v. Kern, 14 S. & R. 267; Fuhr v. Dean, 26 Mo. 116; Rutherford v. Tracy, 48 Mo. 325; Bispham's Equity, p. 237. The nursery stock was personal property. It was not put on the ground to stay there, but to be moved away. Backenstoss v. Stahlers, 33 Pa. 254; Miller v. Baker, 1 Met. 31; Matson v. Calhoun, 44 Mo. 368; Lowenberg v. Bernd, 47 Mo. 297; Bircher v. Parker, 40 Mo. 118. The defendants are not trying to enforce a contract; in their answer they state facts. The contract was sufficiently definite. Paris v. Haley, 61 Mo. 458. When no time is fixed for the performance of a contract, the law implies a reasonable time. Bryant v. Saling, 4 Mo. 528; Salisbury v. Renick, 44 Mo. 558. To support ejectment one must have the legal title and right to possession at date of bringing of suit. Beal v. Harmon, 38 Mo. 435. The plaintiff was not justified in taking a non-suit. Layton v. Riney, 33 Mo. 88; Hagerman v. Moreland, 33 Mo. 86; Kirby v. Burns, 45 Mo. 234.

MARTIN, C.

The plaintiff sued in ejectment in the usual form, averring entry and ouster on the 13th of February, 1878. On the 17th of June, 1879, this suit still pending, the defendants surrendered, and the plaintiff accepted possession of the premises sued for, thus leaving to be settled by trial the abstract right of plaintiff to recover as of the 13th of February, 1878, and the damages consequent upon the adverse possession of defendants at and after the date aforesaid.

It seems that plaintiff was originally owner of the premises and on the 10th of March, 1871, sold them to the firm of Blair Brothers, consisting of J. A. Blair, R. H. Blair and J. C. Blair. At the same date said Blair Brothers delivered to plaintiff a deed of trust on the premises to secure a part of the unpaid purchase money evidenced by three promissory notes falling due at different times, and aggregating in amount about $5,500. Blair Brothers entered into possession of the premises so purchased by them, planting and growing thereon a large nursery, and carrying on a general nursery business in their firm name. On the 4th of February, 1875, Blair Bros. executed a second deed of trust covering the said premises, and including their nursery stock, for the purpose of securing to one A. L. Mason a debt of about $4000. On the 9th of February, 1877, the demanded premises and nursery were sold at trustee's sale under the second deed of trust. The defendants, composing a firm under the name of Wallace & Co., purchased the same, and entered into possession thereof, upon surrender of Blair Bros., at the date of their said purchase. After their entry, defendants continued the nursery business left by Blair Bros., and were thus engaged when the premises were advertised and sold under the first deed of trust on the 13th of February, 1878. At this sale the plaintiff, who held the notes secured in the deed, became purchaser. As owner of the legal title, his suit should prevail, unless the defendants have pleaded and proved a good defense against the right of possession which his title implies.

In their answer they allege that before their purchase under the second deed of trust, the plaintiff, as holder of the debt controlling the first deed of trust, agreed with them that if they would purchase the land and stock at the sale under the second deed of trust, they should have possession of the land until they could in the ordinary course of business sell off the nursery stock, and that he would not enforce his deed of trust nor attempt to take possession of the premises; that in consideration of said undertaking of plaintiff the defendants agreed to pay the interest on the secured notes of the first deed of trust during the time of their possession while disposing of the nursery stock in the ordinary course of business; that said interest was to be paid out of the first net returns received from the nursery sales, after payment of the debt due Mason for their purchase; that they entered into possession and conducted the nursery business on the faith of said agreement, planting other valuable trees, and in pursuance thereof, paid to plaintiff or to his use $200 in April, 1877, $150 and $482 in June, 1877, and $400 in the fall of 1877. Another contract looking to a lease of the premises to defendants is pleaded, but as the evidence failed to show that it was consummated, it need not be considered further. It is alleged that plaintiff by reason of the premises was estopped from foreclosing his deed of trust and claiming possession as asserted in his petition.

No reply was filed, but the case was tried upon a denial of the defense pleaded in the answer.

A jury being waived, the plaintiff submitted evidence on the issue thus raised, and the defendants did likewise, against the objection of plaintiff. After the evidence was closed and instructions announced, the plaintiff took a non-suit. He now appeals from the action of the court in refusing to set it aside.

I. It is first objected and assigned as ground of error that the answer is insufficient and contains no defense to the action. This point was raised by objection to the introduction of any evidence by defendants in support of it. It will be observed that the defendants were under no legal obligation, outside of the new agreement, to pay the notes or interest thereon which were secured by the first deed of trust. They were the obligations of Blair Bros. The agreement of plaintiff to forbear enforcing his demand as a lien on the premises and to permit the defendants to go on removing and replanting trees, being supported by the promise of defendants to pay the interest on said demand is unquestionably a valid contract and binding upon all parties to it. Glasscock v. Glasscock, 66 Mo. 627. No definite period of time appears in the contract limiting the term of forbearance. But it is not on that account void. The law implies a reasonable time if not a total forbearance according to the circumstances and subject matter of the contract. Salisbury v. Renick, 44 Mo. 558; Glasscock v. Glasscock, 66 Mo. 627. As a conclusion of law on the face of the pleading, it could not be said that a reasonable time had elapsed at the time the deed of trust was foreclosed in the middle of the succeeding winter.

II. I do not think the court erred in refusing the declaration of law asked by plaintiff. It is laid down in the first part of it, substantially, that the court could not find for defendants, unless it found one or both agreements pleaded in the answer had been entered into between the parties and that one or both of them had been performed by defendants. This was all correct enough. But it then proceeds as follows: “And the court cannot find that either of said agreements alleged in said answer were or have been kept and performed, unless said agreements have been respectively and specifically alleged in all their substantive parts in said answer.” This qualification is out of place in a declaration or instruction addressed to the finder of facts. The objection to the sufficiency of the answer had been overruled. If the plaintiff desired to raise it again he should have done so by demurrer or motion to make more definite. The practice of blending it with an instruction on the facts of the case can only lead to confusion and mistake. The unobjectionable part of the instruction is sufficiently included in the instructions given at the instance of defendants to indicate that the case was tried on the theory favored by plaintiff.

III. The action of the court in giving the 4th declaration of law...