Freeman v. Moffit

• Decision Date: 23 December 1893
• Citation: 25 S.W. 87,119 Mo. 280
• Parties: FREEMAN v. MOFFIT et al.
• Court: Missouri Supreme Court

25 S.W. 87

119 Mo. 280

FREEMAN v. MOFFIT et al.

Supreme Court of Missouri, Division No. 2.

December 23, 1893.

SALE UNDER TRUST DEED — PAROL EVIDENCE — ATTORNMENT BY TENANT.

1. Under Rev. St. § 6373, providing that a tenant may lawfully attorn to one who purchases pursuant to a sale under deed of trust, the lessee of a purchaser at a sale under a second deed of trust may lawfully attorn to a purchaser at a subsequent sale under the prior deed of trust.

2. Where two trust deeds were executed by the same person on the same property on the same day, and both were recorded in the same volume of the records, parol evidence is admissible, as against one with knowledge of the facts, to show that a foreclosure sale made by the trustee was under the second, and not the first, trust deed, though the advertisement of sale and deed by the trustee recited the wrong page of the record, so as to make it appear that the sale was under the first trust deed, the recitals in the trustee's deed being as applicable to one trust deed as the other.

3. In such case the trustee's deed conveyed merely an equity of redemption, and not the legal title to the land.

4. Where a partnership buys land, assuming a mortgage thereon, and allows the mortgage to be foreclosed for nonpayment, a purchase by one of the partners under the mortgage sale does not entitle him to a deed of the land, but it constitutes merely a satisfaction of the mortgage.

Appeal from circuit court, Polk county; W. I. Wallace, Judge.

Ejectment by L. E. Freeman against Theodore Moffit and Charles B. Wilkinson. Judgment for plaintiff. Defendants appeal. Reversed.

C. W. Hamlin, for appellants. Upton & Skinker, for respondent.

GANTT, P. J.

This is an action of ejectment for lands in Polk county, Mo., described as the S. E. ¼ of the S. E. ¼ of section 26, and N. ½ of the N. E. ¼, and the N. E. ¼ of N. W. ¼, and 10 acres off the N. side of the S. E. ¼ of N. E. ¼, of section 35, all in township No. 34, of range 22 W., 170 acres. Plaintiff alleges he was entitled to said lands on the 28th day of November, 1890, avers the ouster by defendant on December 1, 1890, and asks for possession, damages in the sum of $500, and rents and profits at $25 per month. The action was commenced against Moffit alone, but at the April term, 1891, defendant Wilkinson, on his motion and by consent, was made defendant also. Defendant Moffit admitted he was in possession as the tenant of Wilkinson, and denied all other allegations in the petition, and Wilkinson admitted that Moffit was in as his tenant, and denied all other averments in the petition. The cause was tried at the October term, 1891, of the Polk circuit court, by the court without a jury. It was admitted that Reuben Lunceford was the common source of title. Plaintiff then read in evidence a deed of trust from said Lunceford and wife, of date September 1, 1886, conveying the lands in suit to Henry J. Page, as trustee, to secure to the Equitable Mortgage Company the payment of a note for $1,200, executed by said Lunceford, bearing date September 1, 1886, and payable September 1, 1891, with interest thereon from date thereof at the rate of 7 per cent. per annum, payable semiannually on 1st days of March and September in each year, according to coupons or interest notes thereto attached, which deed of trust was recorded in Book 16, at page 119, in the recorder's office of Polk county. It contained a power of sale in these words: "And the said party of the second part, or, in case of his death, inability, or refusal to act, or absence from the state of Missouri, then the (then) sheriff of said county of Polk and state of Missouri (who shall thereupon become his successor to the title of said property, and the same become vested in him in trust for the purposes and objects of these presents, and with all the powers, duties, and obligations thereof) may, at the request of the holder of said note, proceed to sell the property hereinbefore described, and any and every part thereof, and all rights and equity of redemption of the said party of the first part, and the heirs, executors, and assigns of the said first part therein, at public vendue to the highest bidder, at the front door of the state circuit courthouse in the county of Polk and state of Missouri, first giving twenty days' public notice of the time, terms, and place of sale and the property to be sold, by advertisement in some newspaper printed and published in the county in which the land is situated," etc. Second, deed of trust from Reuben Lunceford and wife to Henry J. Page, trustee, Equitable Mortgage Company, beneficiary, covering the land in controversy, dated September 1, A. D. 1886, and for the sum of $120, payable in 10 installments, and which deed was a second deed of trust on said land, and recorded in Book 16, at page 122. Plaintiff next offered a power of attorney, of date April 10, 1889, from said mortgage company and Henry J. Page, trustee, to Samuel Hadlock, sheriff of Polk county, which was recorded in Book 28, at page 378, recorder's office, which contains the following, among other, recitals: "Whereas, Reuben Lunceford and ____, his wife, by their deed of trust dated the first day of September, 1886, and recorded in the recorder's office in and for Polk county, Mo., in Book 16, at page 119, conveyed to Henry J. Page, trustee, the property in said deed described, in trust to secure to the Equitable Mortgage Co. of Kansas City, Mo., the payment of a certain note therein described, the said property being [the land in controversy,] * * *" and authorizing Hadlock to make the sale, and act as trustee, instead of said Page, and in which it was recited that said note had become due and payable, and Page had refused to act, etc. Plaintiff next read a trustee's deed from Reuben Lunceford and wife, by Samuel Hadlock, trustee by appointment, to W. H. Smith, conveying the land in controversy, said deed bearing date of June 8, 1889, and recorded July 22, 1889, in Book 31, at page 224. Said deed is in usual form, and contains the following, among other, recitals: "Whereas, Reuben Lunceford and ____, his wife, by their deed of trust dated the first day of September, 1886, and recorded in the recorder's office in Polk county, Mo., in Book 16, at page 119, conveying to Henry J. Page, as trustee, the property hereinafter described; * * * and whereas, Henry J. Page, the said trustee, has refused to act, and by virtue of a deed of appointment dated April 10, 1889, recorded in the records of Polk county, Mo., in Record 28, at page 378, appointing the undersigned as trustee. * * *" Said deed further recites the notice of sale and publisher's affidavit, which are annexed to, and recorded with, said deed, and are expressly declared to be a part of the same. Said notice of sale contains the following recitals: "Whereas, Reuben Lunceford and ____, his wife, by their certain deed of trust dated September 1, 1886, and recorded in the office of the recorder of deeds of Polk county, Mo., in Book 16, at page 119, conveying to Henry J. Page, trustee, the following described real estate, * * * in trust to secure the payment of one promissory note therein described, together with the interest thereon, as provided for in said note and deed of trust; * * * and whereas, the said Henry J. Page refused to act in this behalf; and whereas, the Equitable Mortgage Co., the legal holder of said note, by its certain deed of appointment dated April 10, 1889, recorded in the office of recorder of deeds of Polk county, Mo., in Book 28, at page 378, appoints the undersigned as trustee, to act instead of Henry J. Page." And also these recitals: "And whereas, it is provided in said note and deed of trust that if default be made in the payment of any installment of said note when due, as provided in said note, the principal sum of said note shall thereupon become due and collectible; and whereas, said Reuben Lunceford and Betsey B. Lunceford have made default in the payment of the fourth and fifth installments provided for in said note." Plaintiff also offered the following conveyances: A lease from W. H. Smith to Theodore Moffit of the lands in controversy. Said lease, dated November 23, 1889, provides that Moffit shall pay one-third of grain raised as rent; that his term shall commence from date of lease, and expire March 1, 1891, except that, in case Smith shall sell the land, then Moffit shall give immediate possession, etc. Deed from W. H. Smith and wife, conveying land in controversy to Jeremiah Wolf. Deed dated October 30, 1889, and recorded November 22, 1889, in Book 12, at page 638. Trust deed from Jeremiah Wolf to W. R. Spoon, trustee for the Bolivar Loan & Trust Company, consideration $1,200, dated November 1, 1889, recorded November 22, 1889, in Book 29, at page 558, conveying land in controversy. This is a foreclosure of the above deed of trust from Wolf to the Bolivar Loan & Trust Company, and contains usual recitals. Deed from J. H. McQuarry and wife to W. B. Freeman, dated November 24, 1890 recorded November 27, 1890, in Book 38, at page 142, and recites "that the said parties of the first part, in consideration of the sum of $3,500 to them paid by the party of the second part, do by these presents grant, bargain, and sell unto the second party" the lands in controversy, but warrants only against grantor and those claiming under him. A general warranty deed from W. B. Freeman (single) to L. E. Freeman, dated November 26, 1890, recorded November 27, 1890, in Book 38, at page 143, reciting a consideration of $3,500, and conveying lands in controversy. It was agreed that the rents should be estimated at $50 per year. Here plaintiff rested. The defendant introduced the following testimony: (1) Deed of trust from Reuben Lunceford and wife to Henry J. Page, as trustee, the Equitable Mortgage Company, beneficiary, dated September 1, 1886, and recorded in Book 16, at page 119, conveying the land...