Crosby v. Farmers' Bank

• Decision Date: 22 December 1891
• Citation: 17 S.W. 1004,107 Mo. 436
• Parties: CROSBY et al. v. FARMERS' BANK OF ANDREW COUNTY et al.
• Court: Missouri Supreme Court

17 S.W. 1004

107 Mo. 436

CROSBY et al. v. FARMERS' BANK OF ANDREW COUNTY et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

MORTGAGES — FORECLOSURE — INCHOATE RIGHT OF DOWER — INVERSE ORDER OF ALIENATION — DEMURRER.

1. A tract of land covered by a mortgage was conveyed by the mortgagor in separate lots to separate vendees. The whole tract was advertised for sale by the sheriff under order of court. Held, that the inchoate right of dower of the wife of one of the vendees, in one of the lots, was such an interest therein as entitled her to require the sheriff to offer one of the lots for sale instead of the whole, and that such right was not affected by the advanced age of the wife.

2. In such case, the husband being a junior vendee, the wife had no right to require the sheriff to offer for sale, first, the first alienated lot, and to offer to pay for that lot the whole amount of the mortgage; the two lots should be subjected in the inverse order of their alienation.

3. The court is not confined to plaintiff's prayer for relief in a certain particular, but, if the relief prayed may not be granted, on the facts stated in the petition, the court may look to the whole petition, and, if the facts alleged authorize the granting of any relief, a demurrer will not lie.

Appeal from circuit court, Andrew county; C. A. ANTHONY, Judge.

Action by Harriet Crosby and Isaac Crosby against the Farmers' Bank of Andrew County, H. B. Watson, and another. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Reversed.

P. Mercer, for appellants. Booher & Williams and David Rea, for respondents.

THOMAS, J.

This action was instituted in Andrew county, and plaintiffs' petition is as follows: "Plaintiffs state that they are husband and wife, legally married. That defendant the Farmers' Bank of Andrew County is a corporation duly incorporated by the laws of the state of Missouri. That defendants H. B. Watson, James H. Watson, and J. M. Elrod are partners doing business under the name and style of Watson & Elrod. That defendant John W. Crank is and has been for more than one year last past sheriff of the county of Andrew aforesaid. That on the 25th day of November, 1872, one Benjamin F. Poston was the owner in fee-simple of the following described real estate situated in the county of Andrew and state of Missouri, to-wit, commencing at the north-east corner of the south-east quarter of section No. 34, in township No. 61, of range No. 35, and running thence south on a true line, 80 rods, to a limestone; thence north 85 degrees, west 15¾ rods, to a point of beginning; from which run north, 85 degrees west, 74¼ rods, to the west bank of the One-Hundred-and Two river; thence up said river, with the meanderings of the west bank thereof, to a point 15¾ rods west of the east line of said quarter section, and directly north of the point of beginning; thence south to the place of beginning, — containing twelve acres, more or less, and including what are known as the `Rosendale Mills.' That on the 25th day of November, 1872, the said Benjamin F. Poston borrowed of Andrew county the sum of $600, belonging to the common-school fund of said county, and executed to said county a mortgage on the real estate aforesaid to secure the payment of said sum of borrowed money. That on the 22d day of July, 1874, said Poston sold and conveyed, by proper deed, to one James Austin, the undivided one-half of the following described tract of the aforesaid real estate, to-wit: Commencing at the north-east corner of the south-east quarter of section No. 34, in township No. 61, of range No. 35, and running thence south, on a true line, 80 rods, to a limestone; thence north, 85 degrees west, 56 rods and 22 links, to a point of beginning; from which run north, 85 degrees west, 42 rods, to the west bank of the One-Hundred-and-Two river; thence up said river, with the meanderings of the west bank thereof, to a point north of the point of beginning; thence south, 42 rods and nine links, to the point of beginning, — containing 3½ acres, more or less, and including said Rosendale Mills. That on the 15th day of October, 1876, said Poston sold and conveyed by warranty deed to plaintiff, Isaac Crosby, in consideration of $7,500, all of the twelve-acre tract of land first herein described, except the undivided one-half of 3½ acres thereof sold to said James Austin, as aforesaid, and except a small piece, 75 feet by 100 feet, out of the south-west corner thereof, sold to one Asa Cobb prior to 1876, — all of said sales of said lands by said Benjamin F. Poston being made subject to the mortgage to Andrew county aforesaid. That plaintiff Harriet Crosby has and is entitled to a right of dower in said real estate purchased by her husband, as aforesaid, which she has not assigned, conveyed, or released. That on the 5th day of July, 1887, the county court of said county of Andrew made an order that defendant John W. Crank, sheriff of said county, proceed to levy on the real estate conveyed by the mortgage of Benjamin F. Poston to Andrew county as aforesaid, and advertise and sell the same according to law, to satisfy the aforesaid debt of said Poston to Andrew county for the use of the school fund thereof, said debt being then due and unpaid. That, by virtue of said order, said John W. Crank, as sheriff of Andrew county aforesaid, levied on said real estate, and advertised the same to be sold at the court-house door in the city of Savannah, in said county, on the 8th day of August, 1887, and during the sitting of the circuit court of said county of Andrew. That said defendant John W. Crank, sheriff as aforesaid, failed and refused, on said 8th day of August, 1887, to sell the real estate aforesaid according to law, but, conspiring with said Farmers' Bank of Andrew County to cheat and defraud plaintiff Harriet Crosby out of her interest in said real estate, made a pretended, collusive, and fraudulent sale thereof to said Farmers' Bank of Andrew County for the pretended sum of one thousand dollars. That said real estate is susceptible of division, said 3½-acre tract of land, containing said Rosendale Mills, being used for milling purposes, is entirely separate...