Corrigan v. Bell

• Decision Date: 31 October 1880
• Citation: 73 Mo. 53
• Parties: CORRIGAN v. BELL et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

73 Mo. 53

CORRIGAN

v.BELL et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

F. M. Black for plaintiffs in error.

1. Neither Glass, nor any one claiming under him, were made defendants, and they have a right to redeem from the purchaser at sale under the judgment on the tax bill. Olmstead v. Tarsney, 69 Mo. 399; Farwell v. Murphy, 2 Wis. 533; 1 Hilliard on Mort., p. 390, 391, 392; Heim v. Vogel, 69 Mo. 529; Knowles v. Rablin, 20 Iowa 101.

2. The fact that Fisher was made defendant will not defeat defendants' rights. Where the trustee in a deed of trust sells the property, he is, no doubt, the proper party to collect the purchase money, but he is not the proper party to sue upon the debt secured by the deed. His powers are simply to sell in case of default in payment. He cannot even release or satisfy the deed of trust when the debt is paid, without being joined by the cestui que trust.§ 3311, R. S. The statute which provides that a trustee of an express trust may sue alone and in his own name, can have no application to this case. It has been doubted whether that statute applies at all to defendants. Dillon v. Bates, 39 Mo. 299. But the statutory rule is but the rule in chancery made applicable to law as well as equity cases. It has never been the rule in this State that such a trustee might foreclose the deed of trust by suit, without the holder of the debt being a party. The holder of the debt is the real party in interest, and is, therefore, both by the statute and general rules of pleading, not only a proper but necessary party. Story Eq. Plead., § 193; Bliss on Code Plead., § 100. That class of cases where a trust has been made by a corporation to secure coupon bond holders, can have no application here. Such trusts are usually coupled with extraordinary powers and duties, the bond holders numerous, and for that reason another rule becomes applicable.

3. Defendants have a right to redeem, also, because neither Harrison nor Kellerman were made parties to the suit on the special tax bill; and defendant Nellie Smith is now the holder of the Kellerman note.

4. To an action of ejectment the defendant may not only plead an equitable defense, but may also have affirmative relief against the plaintiff. Bliss on Code Plead., §§ 349, 350; Bartlett v. Judd, 21 N. Y. 200; Pitcher v. Hennessey, 48 N. Y. 415; Andrews v. Gillespie, 47 N. Y. 487; Barker v. Circle, 60 Mo. 264; Ells v. Pacific R. R. Co., 51 Mo. 204. Defendants were entitled to a decree for redemption. To drive them to a new action to redeem, and in the meantime enjoin this suit, would be, in effect, reviving the distinction between courts of law and equity, the very distinction the practice act seeks to abolish.

5. The judgment was taken against Nellie Smith, a married woman, for damages, and for that reason is erroneous, and should be reversed.

NORTON, J.

This is an action of ejectment to recover possession of lot 27, block 26, West Kansas addition to the City of Kansas. The answer of defendant Bell is a general denial. The answer of defendants Smith and Nellie Smith, his wife, sets up an equitable defense. This answer was demurred to and the demurrer sustained, and the action of the court in this respect is the chief ground relied upon for a reversal of the judgment. The demurrer to the answer admitted the following facts set up in the answer, viz: that plaintiff's title to the proporty in question is derived through a sale thereof made by the sheriff by virtue of a certain execution which issued on a judgment rendered in a suit instituted by plaintiff on the 18th day of April, 1874, against Edward Deyoeger, S. J. Fisher and Samuel Montgomery, to enforce the lien of a certain tax bill against said property; that said Deyoeger was the original owner of said property, and on the 6th day of April, 1874, conveyed the same by deed of trust to S. J. Fisher, as trustee for one Glass, to secure the payment of a note therein described; which deed was on that day recorded; that Deyoeger had also, on the 10th day of September, 1873, conveyed, by deed duly recorded, the property in question to one Harrison, in trust to secure the payment of a note held by one Kellerman for $1,000; that Nellie Smith is the holder and owner of the said note and deed of trust executed to Harrison in trust for Kellerman; that Fisher, as trustee, sold the property conveyed to him in trust for Glass, at which sale Glass became the purchaser, and subsequently to his purchase sold one-half the land to one Bell, and that said Bell and Glass, by a subsequent deed, conveyed the entire property to defendant Nellie Smith; that said Glass, Harrison and Kellerman, nor either of them,...