City of St. Louis v. Priest

• Decision Date: 31 March 1891
• Parties: CITY OF ST. LOUIS v. PRIEST.
• Court: Missouri Supreme Court

15 S.W. 988

103 Mo. 652

CITY OF ST. LOUIS v. PRIEST.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

ADVERSE POSSESSION — CONSTRUCTIVE POSSESSION.

Where, upon the foreclosure of a deed of trust, which subsequently proves to be void because of a non-compliance with the terms of the power of sale, the mortgagee, a city, becomes the purchaser, and delivers up the notes, marked "Canceled," but does not go into the actual possession of the lots, which remain vacant and unoccupied, though listed by the city assessor as city property, the deed of trust itself remains in full force, and the constructive possession which can be predicated upon the title, which still remains in the mortgagor, will not be regarded as adverse, so as to raise the bar of limitations against new proceedings for foreclosure.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

W. H. Clopton and C. H. Krum, for appellant. L. Bell, for respondent.

MACFARLANE, J.

The evidence in this case shows that in the year 1859 the city of St. Louis sold and conveyed to defendant, Priest, and one John J. Anderson, certain lots in the city of St. Louis. That at the same time Priest and Anderson conveyed the same property to one Stephen Hoyt, as trustee, to secure certain notes made by them to the plaintiff, the city of St. Louis. Those notes were given as part of the purchase price of the lots. In December, 1864, some of these notes remaining unpaid, a sale was made under the power contained in the deed of trust, and the city became the purchaser for the amount of the unpaid notes. A deed was made to the city, and the notes were canceled by this indorsement, "Canceled by sale Dec. 15th, 1864," and delivered to the makers. The lots were vacant and unimproved from the date of sale, in 1859, to about March, 1880, when they were fenced by the city, and have been kept inclosed since that time. From 1865 the property was listed by the city assessor as being the property of the city. The sale by the trustee, and the deed thereunder, were declared void by this court in 1886. 88 Mo. 612. This suit was commenced at once by the city against Priest and Anderson's grantee, the purpose of which was to obtain a foreclosure of the deed of trust. Defendants pleaded payment and the statutes of limitation. A decree of foreclosure was rendered by the circuit court, and defendants appealed therefrom.

1. It is now too well settled in this state to admit of further discussion that a foreclosure and sale, under an unsatisfied mortgage or deed of trust, will not be barred by the statutes of limitation, unless there has been an adverse possession of the mortgaged property for the requisite period to create the bar. Lewis v. Schwenn, 93 Mo. 29, 2 S. W. Rep. 391; Booker v. Armstrong, 93 Mo. 55, 4 S. W. Rep. 727; Gardner v. Terry, 99 Mo. 524, 12 S. W. Rep. 888. The possession of real estate which will create a bar, under the statutes of limitation, must be actual, open, and visible; such as will give notice to all the world that a claim of ownership is asserted. Scruggs v. Scruggs, 43 Mo. 142; Bowman v. Lee, 48 Mo. 335; Gray v. Givens, 26 Mo. 291. It is true that, where the property is wholly unoccupied, the constructive possession follows the...