Destrehan v. Scudder

• Citation: 11 Mo. 484
• Parties: DESTREHAN v. SCUDDER.
• Decision Date: 31 July 1848
• Court: United States State Supreme Court of Missouri

11 Mo. 484

DESTREHAN

v.SCUDDER.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM CAPE GIRARDEAU CIRCUIT COURT.

BOGY & RANNEY, for Appellant.

1st. Could the chancery court entertain jurisdiction of this cause? Does it not come under either the heads of trust, fraud or accident, or a case of extreme hardship? 2nd. If the court entertained jurisdiction of the cause, was not the court bound, if anything was found in favor of defendant, to enter a decree against plaintiff for the amount so found, and in what way to be made, instead of permitting defendant to get the same in the best way he could, like the present decree. 3rd. Could the difficulty, in relation to gas and want of repairs, between Scudder and Paulding be inquired into in this suit; and was not those matters definitively settled in the suit of Scudder v. Paulding, in Parish Court of New Orleans, the record of which is here in evidence? 4th. Was not the defendant entitled to a decree for the full amount paid by him for Scudder for the nine months' rent, and interest thereon at ten per cent., after deducting the $112 57, made by attachment in New Orleans Parish Court. 5th. Did the court err in overruling the exceptions to the depositions taken on the part of John Scudder, taken by him in a suit of Destrehan v. John Scudder, case in the St. Louis Court of Common Pleas, and afterwards suffering them to be read on the hearing of this cause.

CAMPBELL, for Appellee.

1st. The power of sale vested in the mortgagee without any proceeding for foreclosure, is contrary to the spirit of our laws, and contrary to public policy and void, and in all cases a party should be required to procure a decree of foreclosure before he undertakes to sell mortgaged premises, and for that reason the injunction should have been sustained as to the whole amount, as well as to a part of the sum claimed by Destrehan.

2nd. Destrehan, as the security of Scudder, gave his notes to Paulding for nine months' rent of the Planters Hotel, on a compromise, without the consent of Scudder, voluntarily, and at a time when he well knew that the hotel had not been kept in tenantable order by Paulding, that it been rendered unprofitable by the failure to obtain gas light for it, on account of the alleged indebtedness of Paulding to the Gas-Light Company; that the hotel had been abandoned by Scudder and tendered to Paulding, and that a suit had been instituted by Scudder against Paulding to cancel the contract, and obtain damages, and which suit was then still pending and undetermined; and under such a state of facts the security, Destrehan, cannot recover against Scudder, the principal, the amount which he has thus unlawfully volunteered to pay, and for this reason the decree should have been to enjoin the said Destrehan altogether from selling said land.

3rd. Destrehan cannot recover from Scudder any part of the money which he claims to have paid for the rent of said hotel from the first of May till the first of August, because on the first of May, Paulding, the landlord, took possession of the hotel, with the consent and connivance of Destrehan, and continued to use, occupy and enjoy it from that time, on a compromise collusively made between Destrehan and Paulding, without the consent, and contrary to the wishes, of Scudder, the principal. The sum of $1,875, thus unlawfully assumed by Destrehan before it was due, and for a space of time in which Paulding was in possession of the hotel, could not be lawfully recovered by Destrehan from Scudder, even if his claims for the amount of the rent previous to the first of May, were just.

4th. Destrehan was not entitled to recover from Scudder any part of the money claimed by him, because it does not appear that he had paid to Paulding any part of the rent, not even the sum of $1,875, which had been advanced by Scudder for that purpose; but he merely executed to Paulding his individual note for the amount of nine months' rent, which note did not amount to a payment or satisfaction of the debt, nor to a release to Scudder, and therefore he was not entitled as security to recover anything from Scudder, the principal, nor to sell the land of Scudder; and the decree, for that reason, should have been to enjoin the sale entirely and absolutely.

5th. There appears to have been a fraudulent collusion between Destrehan and Paulding, to injure Scudder, as appears by the unlawful compromise between them in the absence of Scudder, by attachment of Destrehan against Scudder, in which Paulding was his security, and under which a large amount of valuable property belonging to Scudder was seized, sold and sacrificed for a nominal sum; and by the fact that the note of Destrehan was received by Paulding for the rent, instead of an actual payment, and by the general conduct of both of them after the departure of Scudder from New Orleans; and on account of this collusion they do not come into a court of equity with clean hands, and Destrehan is not entitled to the favorable consideration of the court.

6th. Even if it be lawful to execute a mortgage with a power of sale in the the mortgagee, in cases where the power of sale depends on a failure to pay money directly, such a power ought not to be exercised, nor tolerated by the courts, when it depends on a contingent liability, or a failure to comply with the terms of a complicated covenant with a third party; and for that reason the said Destrehan had no right to sell without a decree of foreclosure, and the injunction should have been absolute for the entire amount claimed.

7th. Even if a power to sell under a mortgage reserving a power of sale in the mortgagee, may be sometimes lawfully exercised by the mortgagee, such power ought not to be exercised, nor its exercise permitted by the courts, in a case like this, in which a part of the money has been paid by the principal to the security; in which there was a suit pending by the principal to cancel the contract and avoid future payments; in which there had been a compromise between the security and the creditor without the consent of the principal; in which the debt had not been paid or satisfied by the security, but only arranged by the execution of his individual note; in which an attachment had been issued by the security against the principal, and the property of the principal sold and sacrificed under the same, and in which the proceedings had been numerous and complicated; but in every such case the claimant should be required to foreclose his mortgage, either under the statute, or by a proceeding in chancery, so that it may be determined by a disinterested tribunal how much has been paid, and how much is still due, and whether a decree for the sale of the property is necessary or not. For this reason the injunction should have been entire and absolute as to the whole amount.

8th. The depositions offered by Scudder and objected to by Destrehan, were properly admitted, because although taken in a different cause, yet they were duly taken between the same parties and in relation to the same subject matter of dispute. The technical objections made thereto, were not sustained by the facts of the case, so far as appears by the bill of exceptions.

9th. The deposition of the witness whose evidence was objected to on the ground that he was Scudder's security in the injunction bond, was properly admitted, because that deposition was taken between the same parties, and in relation to the same matter of dispute, long before he became security in the injunction bond, and at a time when that subsequent securityship could not have had any influence on his testimony.

10th. The defendant, Destrehan, asked for no decree in his favor, for the sum of $1,875, nor does it appear from the record that he desired it. He advertised to sell the land on his own authority, as the mortgagee, without asking for a decree of court; the court permitted him to go on with the remedy selected by himself, to the extent of $1,875, and no more. Of this he has no right to complain, unless he can show that a larger sum is due to him.

11th. Destrehan, as mortgagee, advertised for sale several tracts that were expressly reserved and excepted in the mortgage, as well as those conveyed by that instrument, and this justified an injunction.

NAPTON, J.

In January, 1843, Scudder filed his bill in chancery against Destrehan in the Circuit Court of Cape Girardeau county. The bill stated, that in October, 1840, the complainant rented of Cornelius Paulding, of New Orleans, a hotel in that city, called the Planters Hotel, for one year from the 1st November, 1840, at the price of $7,500, payable in monthly installments of $625 each; that the lease embraced the house, furniture and fixtures, and all the appurtenances and privileges appertaining to the same, and among others, the use of the gas tubes and pipes attached to the building; that it was also understood and agreed, that the building was to be kept in tenantable repair, and that said Destrehan became complainant's security on said lease. The complainant, to secure Destrehan for this liability, executed a mortgage of certain lands in the counties of Perry and Cape Girardeau. The bill alleges, that in consequence of Paulding's indebtedness to the Gas-Light Company, the complainant was refused gas to supply the hotel, and that the upper rooms of the hotel were injured by leaks in the roof which let in the water, so that they were unfit for habitation; that in consequence of these injuries, he declined paying any rent to Paulding, but deposited with Destrehan, as collateral security, the sum of $1,875 (three months rent), and commenced a suit for damages against Paulding, which suit is averred to be still depending in the Supreme Court of Louisiana. This conduct, it is averred in the bill, met with the decided approbation of Destrehan. In the month of April, 1840, the complainant gave Paulding notice, that his house was untenantable, and accordingly he left New...