Combs v. Goldsworthy
| Decision Date | 14 March 1892 |
| Citation | 18 S.W. 1130,109 Mo. 151 |
| Parties | Combs, Administrator, Appellant, v. Goldsworthy et al |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed and remanded.
Jones & Jones for appellant.
(1) While the statute of limitations applicable to personal actions may defeat a suit upon the notes secured by the deed of trust sought to be foreclosed, still the deed of trust itself can be foreclosed as long as no personal deficiency judgment over is asked for, provided no ten years' adverse possession is shown against mortgagee as required by real-estate limitation act. Lewis, Adm'r, v Schwenn, 93 Mo. 26; Booker, Adm'r, v. Armstrong Adm'r, 93 Mo. 49; Orr v. Rode, 101 Mo. 387; Benton Co. v. Czarlinsky, 101 Mo. 275; Gardner v. Terry, 99 Mo. 523; St. Louis v. Priest, 103 Mo. 652. (2) The evidence in this case does not show any adverse possession on part of Goldsworthy, so pronounced and decisive in character that it will avail against a mortgagee. The rule applicable to mortgagees being different from that enforced against persons entitled to immediate possession with no privy or contractual relations existing between the adverse holder and the claimant, mortgagees before foreclosure having no possessory control over the property or over the actions of the owner; and only ordinary proprietary acts of the owner, as shown in this case, convey no intelligence to a mortgagee that a possession is in any way intended to be adverse to his mortgage. 2 Jones on Mortgages [4 Ed.] sec. 1202, and cases cited; 1 Jones on Mortgages [4 Ed.] sec. 672, and cases cited; Atchison v. Pease, 96 Mo. 567; Kennett v. Plummer, 28 Mo. 145; Pease v. Iron Co., 49 Mo. 128; Wood on Limitation of Actions, sec. 221. Benton Co. v. Czarlinsky, 101 Mo 280. (3) An agent, like Goldsworthy, where the fiduciary relations existing between him and Duff were not dissolved until 1880 (the time of Duff's death), is estopped from setting up adverse possession, at least for the time prior to 1880, if not altogether. Any other rule is against public policy, tending to destroy the confidence and sacred relationship existing between principal and agent, which the law is so zealous to fully guard. Mechem on Agency, secs. 66, 68, 454, 455, 456, 457, 461; Grumley v. Webb, 44 Mo. 444.
S. H. Corn for respondent.
(1) There is no assignment of errors in this case, and there is nothing for this court to review except the finding of the court below upon the facts. In cases both at law and equity this court will defer to the finding of the facts by the trial court, and not disturb such finding if supported by any testimony. Smith v. Finn, 77 Mo. 499; Chapman v. McIlwrath, 77 Mo. 38; Hendricks v. Woods, 79 Mo. 599; Gaines v. Fender, 82 Mo. 497; Hamilton v. Boggess, 63 Mo. 233. (2) The petition in this case should be dismissed for want of grounds of equity jurisdiction. The statute, chapter 116, Revised Statutes, prescribes the remedy for the foreclosure of mortgages in this state, and proceedings thereunder are uniformly held by this court to be proceedings at law. Carr v. Holbrook, 1 Mo. 240; Thayer v. Campbell, 9 Mo. 280; R. S., sec. 7084; Mason v. Barnard, 36 Mo. 38; Davis v. Holmes, 55 Mo. 349; O'Fallon v. Clopton, 89 Mo. 284. This remedy at law must be resorted to in all cases where it is adequate to furnish the proper relief. In such cases equity has no jurisdiction. This is but invoking the application of the first principle upon which equity jurisdiction was originally based. Judgment for the debt secured is an indispensable prerequisite of this statute to the further relief of foreclosure of the equity of redemption. This statute furnishes no remedy to the mortgagee who seeks no judgment for the debt. If no judgment can be entered for the debt, because of the bar of the statute of limitations or for any other reason, no foreclosure can be had. The bar of the statute of limitations furnishes no ground for equitable relief; a court of equity cannot "set aside an act of the legislature, or disregard a statute founded on reasons of public policy and mandatory in its nature." Bauer v. Gray, 18 Mo.App. 173; concurring opinion of Judges Black, Ray and Norton in Kline v. Vogel, 90 Mo. 250. (3) The statute of limitations had run against this action. Action for the foreclosure of a mortgage accrues as soon as default is made in payment of the debt secured. No action of any character can be maintained in the courts of this state, unless begun within ten years from the time the cause of action accrued. R. S., secs. 1989, 6764, 6773; Hunter v. Hunter, 50 Mo. 451; Johnson v. Johnson, 81 Mo. 331; Bush v. White, 85 Mo. 358. (4) This is an action for the recovery of money, not for the "recovery of lands, tenements and hereditaments, or for the recovery of the possession thereof." 1 Chitty's Pleadings [10 Am. Ed.] p. 19; R. S., sec. 7082; Tierney v. Spiva, 97 Mo. 98; Riley's Adm'r v. McCord's Adm'r, 21 Mo. 285; Miles v. Smith, 22 Mo. 502; Perkins v. Woods, 27 Mo. 547; Burdyne v. Mackey, 7 Mo. 374; Aubuchon v. Lory, 23 Mo. 99. In this state a mortgage has long been held to be a security only for a debt; it creates a lien upon the land but does not convey the legal title; the mortgagor remains owner, and his possession is not subservient to the mortgagee. The debt is the principal thing, the mortgage is incident to the debt; whatever affects the debt operates upon the mortgage. Kennet v. Plummer, 28 Mo. 145; Ward v. Hildebrand, 46 Mo. 284; McNair v. Picotte, 33 Mo. 57; Johnson v. Johnson, 81 Mo. 331; Bush v. White, 85 Mo. 356. (5) The testimony in this case fills all the requirements of the law for adverse possession. Possession for the requisite time, with bare omission to recognize the mortgage, is sufficient. Lewis v. Schwenn, 93 Mo. 26-32; St. Louis v. Priest, 103 Mo. 652; McNair v. Lott, 34 Mo. 285-302; Cape Girardeau v. Harbison, 58 Mo. 90-96; Moreau v. Dutchmundy, 18 Mo. 529; Chouteau v. Burlando, 20 Mo. 482. If the possession originated in fraud it shows its hostile character, but does not defeat the operation of the statute. Walker v. Bacon, 32 Mo. 144-158.
This is an action to foreclose a mortgage on certain tracts of land in DeKalb county, described as containing five hundred and thirty and one-half acres, duly executed and acknowledged by the defendant, W. H. Taylor, bearing date July 15, 1870, and filed for record in said county on the twenty-fifth of July, 1870, to secure the payment of two promissory notes, also executed by the said Taylor, dated June 13, 1870, each for the sum of $ 1,000, both payable to the said John Duff; one, one year, and the other, two years after date, and both bearing interest from date at the rate of ten per cent. per annum.
It is alleged in the petition that the defendant Goldsworthy claims some interest in the lands under a quitclaim deed therefor from said Taylor, dated July 25, 1870, and recorded in said county on the fifteenth of June, 1871; and that defendant, Mathew L. Wrigley, is in possession of the premises under said Goldsworthy; and that said notes were given in part payment of the purchase money for said land, and with interest thereon, except one year's interest on each of said notes remains unpaid, and prays that the land, or so much thereof as may be necessary to pay off and discharge the remainder of said notes and interest, be sold, and the proceeds applied to the payment thereof.
The suit was instituted August 15, 1887. The defendant Goldsworthy, alone, answered the petition. His plea was payment and the statute of limitations, upon which issue was joined by reply. The case was submitted to the court on the evidence without any declarations of law, the issue found for the defendant, and from the judgment in his favor plaintiff appeals.
It appears from the evidence that in the year 1869 the said John Duff, who was a resident of Boston, Massachusetts, was the owner of twenty-five thousand or thirty thousand acres of land in Missouri, including this land in DeKalb county; that Goldsworthy was a lawyer, located and doing business at Cameron, Missouri; that on the fourth of November, 1869, he wrote a letter to Duff, informing him that his lands in DeKalb county were depreciating in value, because of neglect; that the timber was being cut off and hauled to town and sold by trespassers; that tax titles were being acquired and conveyed to some portions of it, and intimating that he was in danger of losing the title to some of his lands unless his interests were protected, and suggested that if he Goldsworthy, had authority from him he would stop these inroads being made upon Duff's interests by a set of irresponsible rascals, and adds: "Should you desire to sell this land, or any portion of it, I would act as agent, with your approval." By his letter of date ninth of November, 1869, Duff accepted Goldsworthy's proposition, appointed him his agent, and he immediately took charge of the lands as such; advised Duff that his lands were worth from $ 10 to $ 15 per acre; took measures to relieve the lands of tax liens and to keep off trespassers. On the twenty-fifth of March, 1870, Goldsworthy wrote Duff that he thought the land could be sold for $ 4,000 or $ 5,000. On the thirtieth of March Duff replied that he desired to sell, and requested Goldsworthy to get the best offer and terms he could. On the eleventh of April Goldsworthy wrote Duff that he was offered $ 4,000 for the land, one-half down, balance in two years with ten-per-cent. interest. On the seventeenth of May he called Duff's attention again to the offer by another letter of that date, stating that Perrine was the name of the man that made the offer. On the fourth of June, by his letter of that date,...
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