Chouteau's Ex'r v. Burlando

• Decision Date: 31 March 1855
• Citation: 20 Mo. 482
• Parties: CHOUTEAU'S EXECUTOR & OTHERS, Appellants, v. BURLANDO & OTHERS, Respondents.
• Court: Missouri Supreme Court

20 Mo. 482

CHOUTEAU'S EXECUTOR & OTHERS, Appellants,

v.BURLANDO & OTHERS, Respondents.

Supreme Court of Missouri.

March Term, 1855.

1. D. was originally the owner of 10,256 arpents of land, out of which he had conveyed 4,000 arpents to his son, and afterwards mortgaged 4,426 arpents described as his remaining interest in the tract. A sheriff's deed subsequently conveyed all his interest in the whole tract except 4,426 arpents described as sold by the sheriff at a previous term of the court, of which previous sale there was no evidence in the record. Held, the sheriff's deed passed no interest in the 4,426 arpents covered by the mortgage.

2. The omission of the officer taking the acknowledgment of a mortgage to certify to the personal identity of the grantor, can only be taken advantage of by a subsequent purchaser for a valuable consideration.

3. The lapse of thirty years held no bar to the foreclosure of a mortgage upon wild and unimproved land, where neither mortgagor nor mortgagee had been in possession, there being evidence that the mortgagor abandoned all claim to the land after executing the mortgage, and that the mortgage debts were unpaid. A mortgage may be enforced so long as it is available, although the debt secured by it is barred by the statute of limitations.

4. As by our statute the letters of an administrator are revoked by the fact of his becoming a non-resident, he cannot afterwards be made a party to a suit in his administrative capacity.

Appeal from Ste. Genevieve Circuit Court.

This was a petition filed in March, 1854, to foreclose a mortgage executed by Pascal Detchemendy to Pierre Chouteau and others in 1822, to secure various debts owing to the mortgagees in severalty. The mortgage is the same referred to in the case of Moreau v. Detchemendy. (18 Mo. 522.) The plaintiffs were the mortgagees or their personal representatives, and the defendants were the administrator and heirs of Pascal Detchemendy, the claimants of the land, and a portion of the mortgagees or their representatives, who refused to join as plaintiffs. Upon the filing of the petition, it appearing that John L. Detchemendy, who had been the administrator, and was also an heir of Pascal Detchemendy, was a non-resident, an order of publication was made by the clerk in vacation, notifying him of the institution of the suit.

The claimants of the land answered that they were purchasers for a valuable consideration, without notice of a subsisting mortgage; and that the claims of the plaintiffs were barred because not presented for allowance against the estate of Pascal Detchemendy within the time prescribed by law, and also by the statute of limitations. The trial was by the court without a jury.

It appeared that Pascal Detchemendy, being the owner of three adjoining surveys of land on the river Establishment, containing about 10,256, arpents, by two deeds respectively July 20th and September 21st, 1821, conveyed to his son, Clement Detchemendy, 4,000 arpents, to be so taken as to embrace certain mills and other improvements on the west end of the tract, reserving to himself a life estate in twenty arpents, including the house in which he lived. Subsequently, on the 27th of June, 1822, he executed the mortgage in question, in which the land conveyed was described as 4,426 arpents which remained to him after the conveyances to his son. The certificate of acknowledgment to this mortgage did not state that the party executing the same was personally known to the officer. On the 16th of July, 1823, after a sale under an execution against Pascal Detchemendy, the sheriff executed to the purchaser a deed, which, after reciting that the execution had been levied upon “all the right, title, interest and property, which the said Pascal Detchemendy had in and to a certain tract of land known as the large survey of Pascal Detchemendy, said to contain 10,256 arpents, (except 4,426 arpents sold at sheriff's sale at the last term of the Circuit Court of Ste. Genevieve,) situated on the river Establishment.” conveyed “all the right, title and property of him, the said Pascal Detchemendy, in and to the aforementioned premises.” There was no evidence in the record of any previous sheriff's sale. All the title acquired by the sheriff's deed was conveyed to Clement Detchemendy on the 2d of February, 1827. Clement took possession of the mills in 1821, after the deeds from his father, and continued in possession until 1839, cutting wood on the whole tract, but up to 1835, claiming only 4,000 arpents under the two deeds from his father, and his father's life estate in the twenty arpents under the sheriff's deed. In 1835, he acquired a tax title, after which he claimed the whole tract. The tax title consisted of two deeds, which described the land conveyed as “2,602 acres of land, being part of 6,002 58/100 acres, in township 37 and 38, of range 7, survey number 884, assessed in the name of Pascal Detchemendy, and originally claimed by Francis Moreau, and situated on Establishment; and 1,361 12/100 acres of land, being survey number 2,060, in township 37 of range 7, on Establishment, assessed in the name of Pascal Detchemendy under Francis Poilivre; and 1,361 12/100 acres, being survey number 2,059, in township 37 of range 7, on the Establishment, assessed in the name of Pascal Detchemendy and originally claimed by him.” In 1836 and 1839, Clement Detchemendy conveyed all his interest in the entire tract to Joseph Boullier and Joseph T. Landry, whose title was afterwards acquired by the defendants, Dahmon, Maller and Burlando. The parties succeeding Clement Detchemendy had a possession of the same character as his. Pascal Detchemendy continued to live in the house reserved in his deeds to his son, until 1825, cutting wood over the whole tract, when he removed to Washington county, where he died in 1844. There was evidence in the record that he did not pay taxes on the land after executing the mortgage, and of declarations by him that he had given up the 4,426 arpents to his creditors. The eastern end of the tract, supposed to be covered by the mortgage was a pine forest, wholly unimproved, and was not sufficient to pay the mortgage debts. There was evidence tending to show that the debts had never been paid. Clement Detchemendy testified that his father was never able to pay them, and that some years after he removed to Washington county, he expressed dissatisfaction that the mortgagees did not proceed and sell the land under the mortgage. None of the mortgagees or those claiming under them were ever in possession of the land, or ever openly asserted any claim to it, although most of them resided in and near Ste. Genevieve county from the date of the execution of the mortgage. Clement Detchemendy stated that he had paid one of the debts secured by the mortgage since quitting possession of the land.

Upon the above facts, the Circuit Court declared that the plaintiffs could not maintain their suit.

G. E. Young, for appellant.

I. The presumption of payment from lapse of time is not an absolute bar to the foreclosure of a mortgage, but may be rebutted by evidence. (2 Hilliard on Mort. 3 and 5; 10 Johns. 414; 3 Johns. Dig. 311; 7 Wend. 94; Cowper, 109.)

II. The proof in this case repels any such presumption. 1. Because P. Detchemendy was insolvent and never able to pay. (Cowper, 109; 12...