Collins v. Stocking

• Decision Date: 10 June 1889
• Citation: 11 S.W. 750,98 Mo. 290
• Parties: COLLINS v. STOCKING.
• Court: Missouri Supreme Court

11 S.W. 750

98 Mo. 290

COLLINS v. STOCKING.

Supreme Court of Missouri.

June 10, 1889.

MORTGAGES — SATISFACTION — MERGER — EJECTMENT.

1. A contention that a debt secured by deed of trust under which defendant in ejectment claims, has been paid, is not sustained, where the beneficiary testifies positively that it has not been paid, and the debtor, who is a witness for plaintiff, testifies that he owed the beneficiary other debts, and does not claim that a payment made by him to the beneficiary was to be applied on the debt secured by the deed of trust.

2. A conveyance of the fee in land by quitclaim deed to the beneficiary in a deed of trust on the land does not operate as a satisfaction of such trust-deed, where there is no evidence of a marginal satisfaction nor of an intention on the part of the parties to the quitclaim deed to cancel the trust-deed, and the quitclaim deed contains a release clause in brackets, the blanks of which are not filled out.

3. Such conveyance will not cause a merger of the equitable and legal estate in the land in the grantee, where there is an outstanding second deed of trust on the land at the time of the conveyance.

4. One who is in possession of the land under contract for purchase from the beneficiary in the first trust-deed, may defend in ejectment against the second cestui que trust.

Appeal from circuit court, Holt county; H. S. KELLY, Judge.

Ejectment by Stephen C. Collins against Ira D. Stocking. Judgment for defendant, and plaintiff appeals.

H. T. Alkire and T C. Dungan, for appellant. Louis C. Irvine, for respondent.

BLACK, J.

This is an action of ejectment for 10 acres of land. The answer is a general denial. Both parties claim under Melvina Soper. The defendant put in evidence a deed of trust from Melvina Soper and her husband to Albert Roecker as trustee, dated August 16, 1870, to secure a debt of that date for $186.50, payable to Clarke Irvine; a deed of general warranty from the Sopers to John Ham, dated March 3, 1874; a quitclaim deed from Ham to Clarke Irvine, dated January 1, 1877; and a contract of sale from Irvine to defendant, Stocking, under which he took possession. The plaintiff's title is a deed of trust from the Sopers to T. W. Collins, dated in April, 1872, to secure a debt of that date for $132.50, payable to Stephen Collins, the plaintiff, and a deed to him by the trustee dated 8th October, 1883. It will be seen the defendant relies upon a deed of trust made by the Sopers to secure a debt of $186.50 to Irvine, which deed of trust is prior in date to that under which the plaintiff claims.

The first contention of the plaintiff is that this Irvine deed of trust was paid by the Sopers. Irvine testified in positive and unequivocal terms that his debt had not been paid, though past due. It appears both of these deeds of trust covered other land than that now in suit. In March, 1873, the Sopers sold 10 acres — not the 10 now in suit — for $100 in cash, and a note of $200. This cash was paid to Stephen Collins on his debt, and the note was turned over to Irvine. Much reliance is placed on an extract from the evidence of Irvine, by which he is made to say: "Soper turned me over a note for $200 on McIntyre on this debt, but not on that debt." Now his evidence is that Soper owed him other debts, and that the $200 note was turned over on those other debts, and not on the mortgage debt of $186.50. Soper was a witness for the plaintiff, and his evidence is that he owed Irvine other debts, and he does not claim, or pretend to claim, that this $200 note went in payment of the mortgage debt. There is no evidence in the case showing or tending to show that the Sopers paid any part or portion of this mortgage debt, and all that contention on the part of the plaintiff is out of the case.

The next claim on the part of the plaintiff is that the quitclaim deed from Ham to Irvine operated as a...