Freeman v. Moffitt

• Decision Date: 30 June 1896
• Citation: 36 S.W. 640,135 Mo. 269
• Parties: Freeman v. Moffitt et al., Appellants
• Court: Missouri Supreme Court

36 S.W. 640

135 Mo. 269

Freeman v. Moffitt et al., Appellants

Supreme Court of Missouri, Second Division

June 30, 1896

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

C. W Hamlin for appellants.

(1) W B. Freeman was not a purchaser in good faith. The law requires men in such matters to use reasonable prudence and intelligence to acquaint themselves with the condition of their title to property, and if they fail to do so, they can not be innocent purchasers. Freeman v. Moffitt, 119 Mo. 280; Tydings v. Pitcher, 82 Mo. 379; Bank v Delano, 48 N.Y. 336; Patterson v. Booth, 103 Mo. 414; Fitzhugh v. Barnard, 12 Mich. 104. (2) There was enough appearing on the records and lying within plaintiff's chain of title to put a reasonably cautious and prudent person upon inquiry and give him notice of the defendant's claim of title. (3) The notice did recite appointment of trustee by separate instrument, as provided in second deed of trust. Plaintiff is charged with constructive notice of the recitals in all recorded instruments which constitute the chain of title under which he claims, and if by the examination of the records plaintiff could have ascertained the condition of his title, and failed to examine, or made no attempt to examine the records, he can not be held to be an innocent purchaser. Freeman v. Moffitt, 119 Mo. 280; Tydings v. Pitcher, 82 Mo. 379; Fleckenstein v. Baxter, 114 Mo. 493; Acor v. Westcott, 46 N.Y. 384; Nute v. Nute, 41 N.H. 60; Hamilton v. Nutt, 34 Conn. 510. (4) The fact that the consideration paid by Smith and McQuarry was so grossly inadequate and in fact the recitals in McQuarry's deed to W. B. Freeman, to warrant and defend the title against all persons claiming under, by, or through him, but not against any other person whomsoever, were sufficient within themselves to put a reasonably cautious person upon inquiry if acting in good faith. Roan v. Winn, 93 Mo. 511; Briggs v. Rice, 130 Mass. 50; Singer v. Jacobs, 3 McCrary (U.S.), 638; Benne v. Schnecko, 100 Mo. 256; Ins. Co. v. Smith, 117 Mo. 293. (5) W. B. Freeman took by a special warranty deed, and all others had been quitclaim or trustee's deeds, and the registry act does not aid plaintiff in this case. A quitclaim deed is notice of all prior equities. Bogy v. Shoab, 13 Mo. 380; Ridgeway v. Halliday, 59 Mo. 444; Mann v. Best, 62 Mo. 491; Wolf v. Dyer, 95 Mo. 545; Freeman v. Moffitt, supra.

Upton & Skinker for respondent.

(1) The finding of facts by the trial court stands as a special verdict, and if there is any evidence to support the finding, this court will not weigh the evidence. Freeman v. Moffitt, 119 Mo. 280, and cases therein cited. (2) Appellants have wholly failed to file a full, fair, and complete, printed abstract of the record as required by rule 13 of this court, and their appeal should be dismissed. Long v. Long, 96 Mo. 180; Craig v. Scudder, 98 Mo. 664; Snyder v. Free, 102 Mo. 325. (3) A party is not bound to search the records to see if any one under whom he claims has made a deed subsequent to the deed under which he claims. Tydings v. Pitcher, 82 Mo. 379; Meier v. Meier, 105 Mo. 411; 2 Jones, Mortg., sec. 1624; 3 Wash. Real Property, p. 292; Tiedeman on Real Property, sec. 817. Hence the record of the trustee's deed to Wilkinson and the lease from Wilkinson to Moffitt did not give constructive notice to plaintiff. (4) The deed from McQuarry to Freeman is a "warranty deed." It contains the statutory words, "grant, bargain and sell," which, in themselves, contain covenants of warranty, seizin, and further assurance. If the clause at the close of the deed has any effect at all it limits the covenant of warranty only, and the covenants of seizin and further assurance are in nowise affected thereby. R. S. 1889, sec. 2402. (5) When W. B. Freeman went with McQuarry to look at the land with a view of trading for it, the defendant Moffitt led him to believe that he was in possession as McQuarry's tenant, and wanted to rent the land from Freeman for the ensuing year provided Freeman got it of McQuarry. Moffitt failed to inform Freeman of any claim of Wilkinson, but did claim to be holding under McQuarry. After inducing Freeman to believe that he was holding under McQuarry, it would indeed be "unconscionable" to now allow Moffitt to claim that he was holding adverse to McQuarry. Freeman v. Moffitt, 119 Mo. 280, last two paragraphs of opinion.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an action of ejectment for a farm in Polk county. This is the second appeal. The first is reported in Freeman v. Moffitt, 119 Mo. 280, 25 S.W. 87. The plaintiff recovered judgment again on the last trial, and defendants appealed.

The cause presents some features of the case quite differently from the case as made before. The petition is in statutory form, and the answers general denials.

Reuben Lunsford is the common source of title.

On September 1, 1886, Lunsford executed to the Equitable Mortgage Company his note for $ 1,200, due five years after date, with interest coupons, one of which fell due each six months throughout the term of five years. To secure this note and interest, Lunsford and wife executed their deed of trust, whereby they conveyed to Henry J. Page, as trustee, the lands in controversy. This deed of trust was duly recorded in book number 16, at page 119, and contained the following recitals, among others:

"Whereas, the said party of the first part is justly indebted unto the said party of the third part in the sum of twelve hundred dollars, according to the tenor and effect of one certain promissory note of even date herewith duly executed by the said party of the first part, and payable on the first day of September, 1891, to the order of the Equitable Mortgage Company, at its office in Kansas City, Missouri, with interest thereon from the date thereof at the rate of seven per cent per annum, payable semiannually on the first days of March and September in each year, according to the coupons or interest notes thereto attached.

"But if default be made in the payment of said note, or any part thereof, or any of the interest thereon when due, * * * then the whole amount of said note, with interest thereon, shall at the option of the holder of said note, become immediately due and payable, without notice to said first party, and this deed shall remain in force, and the said party of the second part, or in case of his death, inability, or refusal to act, then the (then) sheriff of said county of Polk (who shall thereupon become his successor to the title to said property) * * * may at the request of the holder of said note, proceed to sell," etc.

In April, 1889, the Equitable Mortgage Company prepared and sent to Samuel Hadlock, sheriff of Polk county, three documents, of the tenor following:

First, a written refusal of Page to act as trustee, and a request by the mortgage company, as holder of the note, for the sheriff to act as trustee. The substance of this document is as follows:

"Whereas, Reuben Lunsford 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, Missouri, 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 Company, of Kansas City, Missouri, the payment of a certain note therein described. The said property being" (the land in controversy). "And whereas, said note has become due, and said Henry J. Page, trustee, has refused to act as such trustee, and does, by joining in the execution of this instrument, hereby refuse to act as such trustee, and assents to the appointment herein made. Now, therefore, the said Equitable Mortgage Company does hereby appoint Samuel Hadlock to act as trustee instead of the said Henry J. Page."

Second, the following notice of sale:

"Whereas Reuben Lunsford and Betsy B. Lunsford, his wife, by their certain deed of trust dated September, 1886, and recorded in recorder's office of the recorder of deeds of Polk county, Missouri, in book 16, at page 119, conveyed to Henry J. Page, trustee, the following described real estate, situated and lying in Polk county (here follows a description of the land in suit), in trust to secure the payment of one certain promissory note therein described, together with the interest thereon, as provided in said note and deed of trust.

"And whereas, said Reuben Lunsford and Betsy B. Lunsford have made default in the payment of the fourth and fifth installment provided for in said note.

"And whereas, by reason of said default, under the terms and provisions of said note and deed of trust, the principal sum of said note has become due and payable.

"And whereas, it is provided in said deed of trust, that if the said Henry J. Page, trustee, shall refuse to act, the legal holder of said note may appoint and substitute any other person as trustee, to act instead of the said Henry J. Page, 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 said deed of trust, with all the powers, duties, and obligations thereof.

"And whereas, the said Henry J. Page has refused to act in this behalf.

"And whereas, the Equitable Mortgage Company, 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, state of Missouri, in book 28, at page 378, appointed and substituted the undersigned as trustee, to act instead of said Henry J. Page.

"Now therefore, at the request of the legal holder of said note, and by virtue of the powers vested in me by...