Dunn v. Raley

• Decision Date: 31 October 1874
• Citation: 58 Mo. 134
• Parties: WILLIAM DUNN, Respondent, v. JAMES RALEY, Appellant.
• Court: Missouri Supreme Court

58 Mo. 134

WILLIAM DUNN, Respondent,

v.JAMES RALEY, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Schuyler Circuit Court.

E. W. Higbee, W. W. Cover and James Raley, for Appellant.

Goldrick, Hughes & Caywood for Respondent.

WAGNER, Judge, delivered the opinion of the court.

From the record it appears, that in 1858, one Geo. F. Cupp was the owner of the land in question and executed a mortgage on the same to the plaintiff, to secure the payment of a promissory note, therein mentioned. Subsequently Cupp sold the land to Henry G. Payton, and took a mortgage thereon to secure the purchase money. When this last or second mortgage became due, Cupp brought suit to foreclose it, making plaintiff, Payton, and the tenants in possession defendants.

Payton and plaintiff were both notified by publication, and at the return term a judgment by default was taken against them, which at the next term was made final. During the pendency of the suit the claim was first assigned to the defendant herein, and then by him again assigned to Mary A. Cupp, in whose name the final judgment was taken.

The land was sold by virtue of an execution, issued under the judgment of foreclosure, and the defendant became the purchaser. Plaintiff afterwards brought this suit upon his first mortgage to foreclose, and it was resisted by the defendant, on the ground that the prior suit was a bar to the action, and that the rights of the plaintiff were concluded thereby. But this defense was unavailing, as the court found for the plaintiff, and the defendant has therefore appealed the cause to this court.

An objection is made to the mortgage of the plaintiff, and it is alleged that it is not sealed in the manner required by law. Opposite the grantor's name, the word seal is written, but it is not surrounded by any scrawl or other written device.

It is very true this does not comply with the statutory requirements in reference to seals, but the mortgage is not in consequence thereof avoided. A mortgage may be irregular where the seal is omitted, or not in accordance with law, but it will nevertheless be valid to create a lien, a trust for the benefit of the creditor, which can be enforced in equity. (McClurg vs. Phillips, 49 Mo., 315; McQuie v. Peay, 58 Mo. 56.) And although this suit for foreclosure is not a proceeding in equity, yet if we find no other error in the record, we would not be justified in reversing the judgment, on that account, and compelling the plaintiff to proceed anew, when the same result must follow.

In the suit of Cupp vs. Payton, a special judgment was rendered awarding execution against the mortgaged premises to satisfy the debt; and at the conclusion of the judgment, it was declared that the equity of redemption of all the defendants was foreclosed. During the progress of this case, a motion was made to amend the judgment by an entry nunc pro tunc, so as to show, that not only the equity of redemption, but the entire interest of the defendants was foreclosed and adjudicated. This motion was overruled.

The minutes kept by the judge presiding at the trial, and by the clerk also, simply showed that a judgment was given for the plaintiff, but there was nothing whatever to indicate that any different judgment was intended from that which was written on the records of the court.

The established rule in this State is, that in all cases, where it is attempted to make a nunc pro tunc amendment, the record must show the facts which authorize the entry. Here there was nothing to amend by and the ruling of the court was therefore correct.

But it is contended that the effect of bringing plaintiff as...