Collins v. Stocking
| Decision Date | 10 June 1889 |
| Parties | Collins, Appellant, v. Stocking |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. H. S. Kelley, Judge.
Affirmed.
H. T Alkire and T. C. Dungan for appellant.
(1) The effect of the quitclaim deed from Ham to Irvine would be to satisfy and discharge Irvine's deed of trust and debt secured thereby, if that was the intention of Ham in making and Irvine in taking, it. 1 Jones on Mort., sec. 855; Champony v. Coope, 34 Barb. 539. And as to what their intentions were, was purely a question of fact for the jury, to be determined by them from all the evidence, facts and circumstances in proof in the case. Williamson v Fischer, 50 Mo. 198; St. Vrain v. Levee Co., 56 Mo. 590; Holliday v. Jones, 59 Mo. 482; Tutt v. Cloney, 62 Mo. 116; Cook v. Railroad, 63 Mo. 398; Kelly v. Railroad, 70 Mo. 604; Smith v. Hutchison, 83 Mo. 683; Brewington v. Jenkins, 85 Mo. 57. (2) If by the terms of the contract between Ham and Irvine, it was agreed that Irvine should have possession of the land in controversy on condition that his, said Irvine's, deed of trust thereon was to be discharged, then the taking possession thereof by Irvine would be a payment and satisfaction of said Irvine's debt and deed of trust, and his lien would be extinguished and he would hold the land subject to Collins' debt and deed of trust. Jones on Mort., secs. 855-856; Loome v. Wheelwright, 3 Sandf. 157; Gardner v. Astor, 3 Johns. 53; Aiken v. Railroad, 37 Wis. 469. (3) And it was clearly the province of the jury, under the evidence, to determine what the contract and agreement was, between said Ham and said Irvine, and the court should have submitted the case to the jury on that issue. Williamson v. Fischer, 50 Mo. 198; St. Vrain v. Levee Co., 56 Mo. 590. (4) The third instruction, asked for by plaintiff and refused, should also have been given, as undoubtedly the legal title to the land in controversy was in plaintiff under the evidence; no attempt was made to show legal title in defendant, or anyone else by any evidence whatever, except the equity of redemption acquired under the quitclaim deed from Ham, which was subject to Collins' trust deed, and which was extinguished by the foreclosure sale. (5) In any event, defendant's possession could only constitute an equitable right; he was only a beneficiary under a deed of trust (and not a mortgagee) in possession. If out of possession, such beneficiary could not maintain a suit for possession, even against the grantor in his deed of trust. 1 Jones on Mort. (2 Ed.) sec. 39; Barnum v. Cook, 4 Mo.App. 590; Siemers v. Schrader, 88 Mo. 20. The legal title to the land was in the trustee, Roecker, and was held by him only for the purpose of enforcing payment of Irvine's debt as such beneficiary. 1 Jones on Mort. (2 Ed.) sec. 62; Siemers v. Schrader, 88 Mo. 20. And in order to defeat plaintiff's legal title and right of possession by any equitable right of defendant, such defense should have been distinctly pleaded and clearly proved. Here the defense was simply a general denial, and an equitable defense could not prevail. Sedgwick and Wait on Trial of Title to Land, secs. 485-6-7; McCauley v. Fulton, 44 Cal. 355; Cadiz v. Majors, 33 Cal. 288; Milhollin v. Jones, 7 Ind. 715; Powers v. Armstrong, 36 Oh. St. 357; Kentfield v. Hayes, 57 Cala. 409; Carman v. Johnson, 20 Mo. 108; Harris v. Vinyard, 42 Mo. 568; Jones v. Manly, 58 Mo. 559.
L. C. Irvine for respondent.
(1) Where the holder of the legal title becomes possessed of the equitable title, the legal presumption is against merger, where it is to the holder's interest to prevent merger, and this in absence of clear evidence of an agreement to the contrary. Bisph. Eq. (3 Ed.) sec. 160; James v. Morey, 2 Cowen, 246; Compton v. Oxenden, 2 Ves. Jun. 264. Merger cannot occur where there is an outstanding title, interest or claim in a third party intervening between the equitable and the legal title. (2) Defendant did not hold as grantee of said Ham's equity of redemption, but under contract with Irvine for a warranty deed, and as the representative of said Irvine in his capacity as "cestui que trust," in possession after the conditions of the trust deed had been violated; and his possession was the same as that of mortgagee in possession after condition broken. Respondent had the right and power to protect his possession by showing an outstanding title in Irvine's trustee, Roecker, better than appellant's title, and friendly to his own claim. McCormick v. Fitzmorris, 39 Mo. 24; Hubble v. Vaughan, 42 Mo. 138; Meyer v. Campbell, 12 Mo. 603-16; Sutton v. Mason, 38 Mo. 120; Walcop v. McKinney, 10 Mo. 229; Howard v. Thornton, 50 Mo. 291; Jackson v. Magruder, 51 Mo. 55; Jones v. Mack, 53 Mo. 147; Honaker v. Shough, 55 Mo. 472.
This is an action of ejectment for ten 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 October 8, 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 ten acres, not the ten now in suit, for one hundred dollars in cash and a note of two hundred dollars. 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 two hundred dollars on McIntyre on this debt, but not on that debt." Now his evidence is that Soper owed him other debts, and that the two hundred-dollar 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 two hundred-dollar 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 satisfaction of Irvine's mortgage. The facts bearing on this question are these: The Sopers made the deed of trust to Roecker, trustee to secure the debt to Irvine in 1870. In 1872 they executed the deed of trust to plaintiff, and then in 1874, conveyed the land to Ham, and Ham made a quitclaim to Irvine in 1877. Irvine says he knew of the sale by...
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