Fox v. Hubbard

• Decision Date: 31 October 1883
• Citation: 79 Mo. 390
• Parties: FOX, Appellant, v. HUBBARD.
• Court: Missouri Supreme Court

79 Mo. 390

FOX, Appellant,

v.HUBBARD.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

REVERSED.

Wm. Heren for appellant.

Vinton Pike for respondent.

EWING, C.

This suit was commenced in the circuit court of Andrew county, and subsequently moved to Buchanan county by change of venue on application of the respondent. For a complete understanding of the questions involved it will be necessary to present fully the pleadings and evidence. The petition is as follows:

Plaintiff for cause of action states that prior to the 13th day of February, 1871, he became the surety of one John W. Hopkins, on a note to one James Snowden, for $667, and that on the 1st day of December, 1870, one William M. Townsend became the surety of said Hopkins, on a note of that date, to one Samuel F. Garrett, for $250, and that on the 13th day of February, 1871, and whilst said notes were still outstanding and unpaid, said John W. Hopkins and Mary B. Hopkins, his wife, in order to secure plaintiff and said Townsend as such sureties on said notes as aforesaid from loss and to save them harmless, executed and delivered to plaintiff and said Townsend jointly, their mortgage deed on lot 15, and thirty feet off the north side of lot 14, in block 8, in the town of Bolckow, in the county of Andrew and State of Missouri. That said Hopkins failed and neglected to pay off said notes when they became due, and plaintiff as such surety as aforesaid paid to said Snowden the amount of the note and interest thereon for which he was surety as aforesaid, and said Townsend as such surety paid to said Garrett the amount of said note and the interest thereon for which he was surety as aforesaid. That said Townsend, after he had paid off said note to said Garrett, sold and assigned the note so paid off by him, together with all his interest in said mortgage deed to the defendant herein, who thereby became jointly interested with plaintiff in said mortgage deed. That defendant, after he had bought and taken an assignment from said Townsend of said note and mortgage deed as aforesaid, brought suit in the Andrew county circuit court against said John W. Hopkins, Mary B. Hopkins and plaintiff herein, to recover judgment against said John W. Hopkins for the amount of money which had been paid by said Townsend on said note to said Garrett as aforesaid, and which had been sold and assigned to defendant as aforesaid, and to foreclose the equity of redemption of said Hopkins in and to said real estate, and to sell the same to satisfy such judgment, whereupon plaintiff herein, and defendant in that suit, filed his separate answer setting up the amount he had paid on said Snowden note as surety thereon as aforesaid, and asking judgment against said John W. Hopkins for the amount, and joining with the plaintiff therein in a prayer for the sale of said real estate to satisfy his said demand, and that the equity of redemption of the said John W. Hopkins therein be foreclosed.

That afterward, to-wit, on the 16th day of August, 1873, said suit came on for hearing, and neither party requiring a jury, the same was submitted to the court; and the court, after hearing all the allegations in the pleadings and the evidence in the cause, rendered judgment in favor of the defendant herein against said John W. Hopkins for $317.69 at ten per cent, and also rendered judgment in favor of the plaintiff herein against said John W. Hopkins for $1,100.12 1/2 at ten per cent, and also rendered judgment that said real estate mentioned in said mortgage deed be sold by the sheriff of Andrew county in the same manner lands are sold under execution, and that said John W. Hopkins' equity of redemption therein be foreclosed, and that said sheriff, after paying the costs, apply the balance of the purchase money to the payment of said judgment in favor of plaintiff and defendant as aforesaid pro rata in proportion to each of said judgments according to the rights and interests of plaintiff and defendant therein.

That afterward, to-wit, on the 13th day of December, 1873, Pembroke Mercer, sheriff of said county of Andrew, in pursuance of said order and judgment of said court, and the provisions of law in such cases made and provided, sold said real estate at the court-house door in the city of Savannah, at public vendue, whilst the circuit court of said county of Andrew was in session; and the plaintiff herein being the highest and best bidder therefor, became the purchaser thereof, and the same was struck off to plaintiff by said sheriff, and said sheriff afterward made, executed and delivered a sheriff's deed to plaintiff, for said real estate so described in said mortgage as aforesaid, as required by law.

Plaintiff further states that the defendant, for some time prior to, and at the time of said sheriff's sale, was the owner in fee simple of lot 13, and twenty feet off the south side of lot 14, in said block 8, in said town of Bolckow, which real estate is contiguous to and adjoining said real estate, so sold by said sheriff to plaintiff as aforesaid; and that the defendant is still the owner and in possession of said real estate so owned by him. Plaintiff further states that after said Hopkins and wife had executed and delivered said mortgage deed to plaintiff and said Townsend as aforesaid, and before the rendition of said judgment, said Hopkins and wife, for a valuable consideration, sold and conveyed all the right, title and interest of said Hopkins and wife in and to said real estate, so mortgaged as aforesaid, to plaintiff, so that said Hopkins and wife have no interest in said mortgage premises. Plaintiff further states that at the time said Hopkins and wife executed said mortgage deed to plaintiff and said Townsend, as aforesaid, there was situated on said real estate in said mortgaged deed described and belonging thereto as a fixture, a large frame dwelling-house of the value of $1,500, which had been erected thereon by said Hopkins, and that said house stood and remained on said real estate at the time of the rendition of said judgments in favor of plaintiff and defendant against said Hopkins, and the order of sale of said mortgaged premises aforesaid, and as plaintiff supposed still stood thereon, and constituted a fixture and a part of said real estate, at the time plaintiff purchased the same at sheriff's sale, as aforesaid. But plaintiff avers and charges that the defendant, intending to cheat, defraud and swindle plaintiff out of his rights in and to said mortgaged premises, after said mortgaged premises had been advertised for sale by said sheriff under said judgment and order of sale, and but a few days prior to said sale, removed said dwelling-house off of said mortgaged premises, on to his own real estate adjacent thereto, hereinbefore described, and placed, arranged and adjusted said house upon a foundation in and upon the said real estate of defendant; and made the same a fixture thereon, without plaintiff's knowledge or consent.

Plaintiff further charges that said dwelling-house still remains on said real estate of defendant as a fixture, and appurtenance thereto belonging, and is now and has been ever since defendant removed the same as aforesaid, occupied by defendant, with his family, as a dwelling-house. Plaintiff further states that by removing said dwellinghouse from said mortgaged premises as aforesaid, said premises have been rendered almost worthless, there being no house or building left thereon whatever; that plaintiff bought said mortgaged premises at said sheriff's sale in good faith, believing that said dwelling-house was still on the same, and knew no better until he had purchased the same, wherefore plaintiff says he has been damaged by the said wrongful, unlawful, fraudulent and deceitful acts and doings of defendant, in the sum of $1,500. Plaintiff further states that defendant is the head of a family, and would, but for his said fraudulent and unlawful acts, be entitled to hold said dwelling-house and real estate on which the same now stands as a homestead, at least to the amount allowed by law, but plaintiff avers that defendant is insolvent and that plaintiff will be in great danger of losing his said dwelling-house unless the value of the same be decreed a lien upon the said house, and the real estate upon which defendant...