Cobe v. Lovan
| Decision Date | 22 February 1906 |
| Parties | COBE, Appellant, v. LOVAN |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed.
Orr & Luster for appellant.
(1) The deed of trust read in evidence vested the legal title to the premises in question in the trustee therein named, and also vested in said trustee the power to sell. And such power was coupled with an interest in the land itself. And the trustee's deed read in evidence passed the legal title to the grantor named therein. Schanewerk v. Hoberecht, 117 Mo. 22; Lanier v. McIntosh, 117 Mo. 508; Kennedy v. Siemers, 120 Mo. 73; Springfield Engine, etc., Co. v. Donovan, 120 Mo. 423; Biffle v Pullman, 125 Mo. 108; Snyder v. Railroad, 131 Mo. 568; Hume v. Hopkins, 140 Mo. 65; Keet v Baker, 141 Mo. 175; Long v. Long, 141 Mo. 352; Building & Inv. Co. v. Dunesworth, 146 Mo. 361; Markwell v. Markwell, 157 Mo. 326; Fowler v Carr, 63 Mo.App. 486; Price v. Blankenship, 71 Mo.App. 548; Huckabee v. Billingsly, 50 Am. Dec. 183; Robinson v. Coholan, 91 Ala. 479. (2) The grantor, Lovan, is bound by recitals contained in the trustee's deed and is estopped from contradicting the same by parol evidence. Building Inv. Co. v. Dunesworth, 146 Mo. 361; Hull v. Pace, 61 Mo.App. 117; Sherwood v. Saxton, 63 Mo. 78; Day v. Breton, 63 Am. St. 461; Wilson v. South Park Commrs., 70 Ill. 46. (3) Even if the grantee in the trustee's deed purchased with notice that the recitals contained in the advertisement and trustee's deed were false, or with notice that default had not in fact been made by the defendant, still said grantor took the legal title under said deed subject to defendant's right of redemption. Springfield Engine & Thresher Co. v. Donovan, 120 Mo. 423; Biffle v. Pullman, 125 Mo. 108; Markwell v. Markwell, 157 Mo. 332. (4) If the grantee in the trustee's deed purchased with notice as above defined, still if plaintiff purchased from said grantee without such notice, defendant's right of redemption is cut off so far as this plaintiff is concerned. (5) The request for the sale was made in the name of the association by Drew as its president; then the law presumes, in the absence of evidence to the contrary, that said request was in fact made by said association. Sparks v. Trans. Co., 104 Mo. 540; Sav. Assn. v. Roscoe, 75 Mo. 408; State ex rel. v. Hupferle, 44 Mo. 154; Bank v. Bank, 107 Mo. 145; Wenscolt v. Inv. Co., 63 Mo.App. 369; Hill v. Bank, 87 Mo.App. 606; Roe v. Bank, 67 S.W. 307; Bambrick v. Campbell, 37 Mo.App. 460. (6) If the record of the deed of trust read in evidence remained unsatisfied from March, 1890, to October, 1897, the date of the trustee's sale, and to the present time, and the trustee's deed was placed of record on the 24th day of November, 1897, and plaintiff has during all that time taken no steps to have said deed of trust cancelled or to redeem therefrom, and has taken no steps to cancel said trustee's deed but has suffered the same to stand upon record as indicia of ownership in the plaintiff and his grantor, the defendant is estopped and cannot redeem as against the plaintiff in the absence of a notice to the plaintiff of anything that would render said deed of trust or trustee's deed voidable or irregular. 26 Am. & Eng. Ency. Law (1 Ed.), 980; Day v. Breton, 102 Iowa 482; Hamilton v. Lubukee, 99 Am. Dec. 567; Kline v. Vogel, 90 Mo. 247; Ferguson v. Soden, 111 Mo. 214; Bausman v. Eads, 24 Am. St. 205; Baker v. Cunningham, 162 Mo. 134; Beattie v. Butler, 21 Mo. 320.
W. P. Campbell for respondent.
A sale of land under a trust deed, without the authority of the owner of the debt, is void. McGee v. Birch, 108 Mo. 336. The assignee of a security given by a borrowing member of a building association, has no authority to control the foreclosure. Lovelace v. Pratt, 163 Mo. 70. A building association having no interest in the land or the security, cannot purchase and obtain title at a foreclosure sale. R. S. 1889, sec. 2817. One claiming title under a building association must take notice of its corporate powers. Bank v. Oliver, 67 Mo.App. 390; Clark on Corporations, 497. A purchaser of land is charged with notice of all recitals in the deeds which constitute his chain of title, and of all facts affecting the title to which such recitals would lead an honest inquirer. Devlin on Deeds, sec. 1000; Wade on Notice, sec. 313. A purchaser of land by taking a quitclaim deed is charged with notice of the rights of the holder of the paramount title and of all equities not in writing or if in writing not required to be recorded under the registry act. And such rights may be enforced in ejectment suit. Stoffel v. Schroeder, 62 Mo. 147; Hope v. Blair, 105 Mo. 86; Condit v. Maxwell, 142 Mo. 278. An owner in possession of land is under no obligation to would-be purchasers to bring a suit to remove a cloud from his title. 12 Am. and Eng. Ency. Law (1 Ed.), 606. Cessation of business by a building and loan association releases its members from further payment of dues. Blakely v. B. & L. Assn., 26 S.W. 295; End. Bldg. Assn., sec. 502; Thompson, Bldg. Assn., 30. The president of a building association has no power to foreclose, without special authority from the board of directors. Clark on Corp. 495; Morawetz on Private Corporations, sec. 537. The hostile declarations of respondent both to the trustee, and the president of the Phoenix Loan Association, were a distinct denial of the right of either to collect dues and interest, or to foreclose the trust deed, and converted his holding into an adverse holding. Benton County v. Czarlinsky, 101 Mo. 280; 1 Jones on Mort., sec. 672.
Cast below in ejectment for block 14 in Maxey's addition to the city of Willow Springs, Cobe appeals.
The petition was in conventional form, laying the ouster as of March 15, 1902.
The answer admits possession, denies all other averments, and pleads certain affirmative defenses, which may be summarized as follows: (1) adverse possession for ten years under a claim of ownership; (2) that plaintiff and those under whom he claims have not been seized or possessed of the premises within ten years; (3) that plaintiff claims title by virtue of a foreclosure by advertisement and sale under a trust deed, executed to the Willow Springs Building & Loan Association, a corporation organized under article 9, chapter, 42, Revised Statutes 1889 -- said deed of trust authorizing the sheriff of Howell county, for the time being, upon the request of said association, to make a sale on default of the payment of interest, dues and penalties as provided in the deed of trust and the constitution and by-laws of said association, for a period of six months; that such sheriff sold and conveyed the premises, but his proceedings were void for the reason that he was not requested by said association, or by anyone authorized to act for the same, to advertise and sell said premises; (4) the sheriff's advertisement, sale and conveyance, as acting trustee, are alleged to be void because there was no default; and (5) are void because they occurred several years after said association ceased to do business.
Issue having been joined, the state of the proof was such that the court ruled against respondent's defense of the Statute of Limitations, thus leaving as the sole issue the validity of the trustee's deed from the then sheriff of Howell county, as acting trustee under the Building and Loan Association deed of trust.
Stated in free outline, appellant contends that the irregularities, if any, shown in the proceedings leading up to the sale are not fatal to his right to recover under the rule laid down in Schanewerk v. Hoberecht, 117 Mo. 22, 22 S.W. 949, and later decisions following that case, and the cause should be reversed.
Stated in free outline, respondent contends that such irregularities were shown as rendered the trustee's deed void under the rule laid down in Lovelace v. Pratt, 163 Mo. 70, 63 S.W. 383, and, hence, his judgment, nisi, should stand.
The facts, much condensed and to some extent stated in their legal effect, are as follows:
Lovan resides in Willow Springs on the locus in quo as a homestead. Cobe resides in Chicago and is vice-president of the Assets Realization Company, Lovan and Ophelia, his wife, on the 25th day of March, 1890, conveyed the premises to Wilkinson, trustee, party of the second part for the benefit of the Willow Springs Building and Loan Association, party of the third part, to secure a note dated March 17, 1890, due in one day to said Association, promising to pay $ 300 for value received with interest from date at the rate of ten per cent per annum, payable monthly on a given Monday -- which note contains the following further promise: "And I promise to pay said association my monthly dues of $ 4 each month, as stockholder in said association, with all penalties assessed on my said stock, according to the constitution and by-laws of said association." The deed of trust contained a provision that if Lovan paid the interest when due and payable, and paid said dues and penalties according to the tenor and effect of the note, and said constitution and by-laws, then the deed should be void. But otherwise, if he failed to pay said interest when due, or failed to pay his monthly dues as stock-holder as they accrue; then, in either event, the deed should remain in full force. A provision was inserted for the substitution of the sheriff as trustee upon the absence of Wilkinson from Howell county, providing that, in that event, "the then acting sheriff of said county, upon the request of the party of the third part, shall sell the property herein described, or so much thereof as may be necessary to pay said note, interest and...
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