Cockrill v. Bane
| Decision Date | 19 March 1888 |
| Citation | 7 S.W. 480,94 Mo. 444 |
| Parties | Cockrill, Administratrix, v. Bane, Appellant |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. Geo. W. Dunn, Judge.
Reversed.
Jas. W Coburn and A. M. Woodson for appellant.
(1) The mortgage from Darnall to Beery contained the words "grant," "bargain," and "sell," which were covenants of further assurance. R. S., 1879, sec 675. And the condition having been broken before the sale from Darnall to Cockrill, the legal title was in Darnall's mortgagee (Jones v. Mack, 53 Mo. 147), and the term, "indefeasible estate in fee-simple absolute," in section 3940, Revised Statutes, 1879, means only the fee or feesimple. 1 Wash. Real Prop. [4 Ed.] p. 77, secs. 33, 35, 36; Jecho v. Taussig, 45 Mo. 167. (2) Darnall had no title to the 5.70 acre tract in controversy, at the date of his mortgage to Mrs. Beery, but acquired it before foreclosure sale, and before his sale to Cockrill, and he and his assigns are estopped from setting up that he had no title at the date of his mortgage. 2 Story Eq. [12 Ed.] sec. 1021a; 1 Jones on Mort. [3 Ed.] secs. 14, 68, 138, 561, 679, 682, 825; 2 Jones Mort. [3 Ed.] secs. 1483, 1656, 1671; 3 Wash. Real Prop. [4 Ed.] p. 120, sec. 51; Todd v. Johnson, 51 Iowa 192.
No brief for respondent.
This is an ejectment suit instituted in the Platte county circuit court to recover possession of five and seventy-hundredths acres in the southwest quarter of section 36, township 53, range 35. Both parties claim through Richard T. Darnall as the common source of title. The plaintiff recovered judgment, from which the defendant has appealed.
The record before us discloses the following facts: That in 1870, said Darnall conveyed the five and seventy-hundredths acres in controversy to John E. Pitt. Darnall, in 1871, mortgaged the whole of said southwest quarter section to Susan Beery. In 1877, said Pitt conveyed the five and seventy-hundredths acres to S. C. Woodson, as trustee, who, under the power given him as trustee, sold and conveyed the said five and seventy-hundredths acres to said Richard T. Darnall. In 1878, said Pitt conveyed the said five and seventy-hundredths acres to Darnall, who shortly thereafter conveyed it to Cockrill, plaintiff's intestate. In 1880, the said mortgage of Darnall, conveying the whole of said southwest quarter, was foreclosed, and at the sale made by the sheriff, S. C. Woodson became the purchaser, and, thereafter, in 1881, Woodson conveyed an undivided half interest to W. J. Miller, and in the same year said Woodson and Miller conveyed the whole quarter to Bane.
It is provided by section 675, Revised Statutes, that the words, "grant," "bargain," and "sell," in all conveyances in which any estate in fee-simple is limited, shall, unless restrained by express terms, contained in such conveyance, be construed to be, among other covenants, covenant "for further assurance of such real estate to be made by the grantor and his heirs to the grantee and his heirs;" and it has been held, in the case of Jones v. Mack, 53 Mo. 147, that a mortgage conveys the legal title to the property, and that, after condition broken, the mortgagee may recover and take possession and hold it against the mortgagor.
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