Ewing v. Shelton

• Decision Date: 31 March 1864
• Citation: 34 Mo. 518
• Parties: HUGH EWING, Respondent, v. JOHN G. SHELTON, Appellant.
• Court: Missouri Supreme Court

34 Mo. 518

HUGH EWING, Respondent,

v.JOHN G. SHELTON, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Court of Common Pleas.

Lackland, Cline & Jamison, for appellant.

I. This action being to recover a penalty, a quasi criminal proceeding, the statute should be strictly construed. The statute provides (sec. 21, Mortgages, R. C. 1855, p. 1091) “that if any mortgagee, trustee, cestui que trust, his executor, or administrator, or assignee, receive full satisfaction of any mortgage or deed of trust, he shall acknowledge satisfaction,” &c. The true and proper construction of which is that the legal assignee, and not merely the equitable assignee, is the proper one to acknowledge satisfaction. The statute intended that the recorder, the keeper of the records, should know the proper persons to acknowledge satisfaction upon the margin of the record, and he could know this only by reference to the records. If the statute means or embraces an equitable assignee, then any person, whether he is the owner or holder of the note or not at the time of payment, may go into the recorder's office and represent himself as the owner of the note, and acknowledge satisfaction; and if it should turn out that he was not the owner at the time of payment, then the entry would not be a satisfaction. If satisfaction should be entered by an equitable assignee, then no attorney or examiner of titles could tell whether the property had been released or not, for it would depend entirely upon a fact not of record, but in pais; therefore, to prevent fraud, to keep the records straight, to avoid confusion and litigation, the legal assignee is the proper one to enter or acknowledge satisfaction.

Two objects are to be accomplished by entering satisfaction, one to give notice, and the other to revest the title, neither of which would be obtained by allowing or permitting the equitable assignee to enter satisfaction. (Vallé & Adams v. American Iron Mountain Company, 27 Mo. 460.)

II. Even if the equitable assignee can legally enter satisfaction, he must necessarily be the owner of the note at the time of payment; and the mere fact of appellant purchasing the note of Asa S. Jones, or the respondent, does not make him the owner or holder at the maturity or the time of payment of the note.

III. Asa S. Jones was the payee of the note, and the cestui que trust in the deed of trust, and was the person to acknowledge satisfaction of the same, and if he had done it, the record would have been straight, the title revested and notice given; but if appellant had entered or had pretended to enter satisfaction, it would have neither revested the title nor have been notice, for there was nothing on the record showing that he had anything to do with it. The recorder should not allow or permit any one to enter or acknowledge satisfaction except the proper one as shown by the record.

IV. Eleazer Sherman was the trustee in said deed of trust, and under the statute could have entered satisfaction.

Sharp, Broadhead and Sherman, for respondent.

The current of authorities is to the effect that a mortgage or deed of trust, on the assignment of the debt which it is made to secure, passes as a mere incident of the debt. (Anderson v. Baumgartner, 27 Mo. 80; Johnson v. Hart, 3 Johns. Cas. 322; Clearwater v. Rose, 1 Black. 137; Miles v. Gray, 4 B. Mon. 417; Dick v. Maury, 9 Smedes & Marsh. 448; Henderson v. Herrod, 10 S. & M. 631; Rigny v. Longay, 13 N. H. 247; Craft v. Webster, 4 Rawle, 255.)

The instructions asked by defendant and refused by the court below, were rightly refused, as they all assume that the assignee referred to in the 21st section of the “act concerning mortgages,” under which this suit was brought, means the legal assignee, not of the debt, but of the instrument which secures the debt. That such is not the meaning of the act, the slightest inspection will convince the court. The object of that, as the following sections show, was to enable the party who creates an encumbrance upon his land, to clear his title from the cloud when the debt which constituted the encumbrance no longer existed.

The statute points directly to the person who shall enter satisfaction or make deed of release; it is the person who receives full satisfaction (that is, payment) of the debt secured by the...