Davis v. Holmes

• Citation: 55 Mo. 349
• Parties: MARTHA A. DAVIS, et al., Respondents, v. HOLMES AND ELLIOTT, Appellants.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 349

MARTHA A. DAVIS, et al., Respondents,

v.HOLMES AND ELLIOTT, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Andrew Circuit Court.

Herron & Rea, Strongs & Hedenberg, and Bennett Pike, for Appellants.

I. Plaintiffs had no right to redeem. The money due on the note and mortgage was paid. (Curtis Eq. Prac., 404; Thornton vs. Irwin, 43 Mo., 160, 161; Bollinger vs. Chouteau, 20 Mo., 89, 95; 4 Kent's Com., 186; 4 John. Ch., 140.) There was no application to redeem alleged in the petition, nor proved on the trial, before the institution of the suit. (2 Hill. Mort., 58, § 18; 6 Am. Law Reg., 508; 29 Me., 302.)

An attempted sale by the mortgagor under a power in a mortgage by which no title to the premises passes, is an equitable assignment of the mortgage debt and the interest in the mortgaged premises. (Grosvenor vs. Day, 1 Clark Chy., 109; McSorley vs. Larissa, 100 Mass., 270; Robinson vs. Ryan, 25 N. Y., 329; Johnson vs. Houston, 47 Mo. 227.)

II. Even if a sale under the circumstances of the case were proper, the decree is erroneous in ordering only the sale of the equity of redemption of respondents in the premises. The order of the sale should have gone to the whole title.

Allen Vories, for Respondent.

I. Unquestionably respondent could redeem, and courts of equity in such cases must adapt their decrees to the case before them, and render substantial justice. The relief should vary with the circumstances. (Thornton vs. Irwin, 43 Mo., 167.) In Vermont, the practice is to fix a time when the money due on the mortgage shall be paid, and to decree a foreclosure on failure to make such payment. (Smith vs. Bailey, 10 Vermont, 163.) The practice in Maryland and Virginia is, to decree that the mortgagor shall pay the debt by a given time, and if not paid then, that the mortgagor be forever foreclosed of all equity of redemption, and the mortgaged premises be sold. (See Turner vs. Turner, 3 Munf., 66; In North Carolina, Ingman vs. Smith, 6 Iredell, Eq. 97.) So in Kentucky (See Butt vs. Bonduront, 7 Monroe, 421), and in other States. In others, strict foreclosure is practiced. This whole question is left to the sound discretion of the courts of chancery, and respondents contend that such discretion was not abused in this case, and that the decree rendered by the court below was the only one that would fully meet the case made, and do exact justice between all the parties. The doctrine of strict foreclosure in the Eastern States arises from special statutes.

NAPTON, Judge, delivered the opinion of the court.

This proceeding was instituted by the heirs of Fleming Davis to have certain sales and deeds of land mortgaged by said Davis, which had been made by the mortgagee Elliott, set aside as void, and to allow a redemption of the land by the plaintiff. The purchaser at these sales--Holmes--was also made a defendant. A great number of fraudulent practices and conspiracies are charged in the petition without the slightest evidence to sustain them. The result was, however, that the deeds to Holmes, the purchaser at the mortgagee's sale, were declared void; one of them, because sufficient notice of the sale was not given, and the other, because the sale was made in the absence of the mortgagee, by an agent or attorney in fact; and a decree was made fixing a time for the plaintiff to redeem, on the payment of a certain amount of money. This amount was ascertained by the court, on a calculation of the money paid by Holmes in his purchase from the mortgagee, and the rents and profits made by him on the land, after he took possession under his purchase, and the value of the improvements made by him. There is no objection to the propriety of the decree in this respect, but the decree then decided that if the plaintiffs did not redeem on the day named, the...