Freeman v. Moffitt
| Decision Date | 23 December 1893 |
| Citation | 25 S.W. 87,119 Mo. 280 |
| Parties | Freeman v. Moffitt et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. W. I. Wallace, Judge.
Reversed and remanded.
C. W Hamlin for appellants.
(1) The fact that defendants were in possession of the premises was of itself, sufficient notice to plaintiff of adverse claim. Merrett v. Poulter, 96 Mo. 240; Vaughn v Tracy, 25 Mo. 318; Levy v. Holberg, 67 Miss. 526; Wise v. Weimer, 23 Mo. 237; Bryan v. Hodges, 107 N.C. 492; Manufacturing Co. v. Hendricks, 106 N.C. 485; Lance v. Gorman, 136 Pa. St. 200; 20 Am. State Rep. 914; 16 Am. and Eng. Encyclopaedia of Law, sec. 2, p. 792; also same volume, sec. 7 at page 800, and cases cited; Leavitt v. La Force, 71 Mo. 356; Kitchen v. Railroad, 69 Mo. 265. (2) There was enough appearing of record lying within the chain of plaintiff's title to put a reasonably prudent person upon inquiry and to give him notice of defendant's claim of title. Tydings v. Pitcher, 82 Mo. 379; Patterson v. Booth, 103 Mo. 414. (3) The fact that the consideration paid by Smith and McQuary were so grossly inadequate, and the fact of the recitals in McQuary's deed to W. B. Freeman to warrant and defend the title against all persons claiming under, by, or through, him, but against the claim of no other person whomsoever, and the fact that defendant was in possession of the premises at the time plaintiff traded for it, are all circumstances such as would put a reasonably prudent and cautious person upon their inquiry if he is acting in good faith. Roan v. Winn, 93 Mo. 511; Briggs v. Rice, 130 Mass. 50; Singer v. Jacobs, 3 McCrary (U.S.) 638; Lowry v. Brown, 1 Coldw. (Tenn.) 456. (4) The court tried the case upon the theory that the tenant could not dispute his landlord's title under any circumstances. See first declaration of law on part of plaintiff, page 20, supra. The statute makes exceptions as to sale under a deed of trust. R. S. 1889, sec. 6373, p. 1503; Lindenbower v. Bently, 86 Mo. 515; Holden Building and Loan Association v. Wann, 43 Mo.App. 642. (5) A tenant is permitted to show that his landlord's title is extinguished. Chaffin v. Brockmeyer, 33 Mo.App. 92. (6) W. B. Freeman took by 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. s. p. 380; Ridgeway v. Halliday, 59 Mo. 444; Mann v. Best, 62 Mo. 491; Wolf v. Dyer, 95 Mo. 545. (7) Plaintiff not producing his deed at the trial the burden was on him to show its execution and delivery. Tyler v. Hall, 106 Mo. 320. (8) Under the law and all the testimony, the judgment of the court was for the wrong party.
Upton & Skinker for respondent.
(1) 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. Not only have they failed to "set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision," but their willful and systematic omission of the most important evidence offered by respondent shows a deliberate attempt to mislead and deceive the court. (2) Moffitt having gone into possession as the tenant of respondent's grantor, W. H. Smith, he can not now dispute respondent's title by setting up a paramount title in Wilkinson. Pentz v. Kuester, 41 Mo. 447; Stagg v. Tanning Co., 56 Mo. 317; Bank v. Clavin, 60 Mo. 559; Loring v. Harmon, 84 Mo. 123; Farrar v. Heinrich, 86 Mo. 521; Lyon v. LaMaster, 103 Mo. 612. (3) A tenant's possession is his landlord's possession. His attornment to a stranger is void. Hence, the possession of Moffitt, under a written lease from respondent's grantor, could not furnish constructive notice of any adverse claims. See authorities cited supra. (4) A party is not bound to search the records to see if anyone 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 on Mortg., sec. 1624; 3 Wash. on Real Property, p. 292; Tiedeman on Real Prop., 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. (5) A defendant in an ejectment suit can not avail himself of an equitable defense he does not plead. Russell v. Whitely, 59 Mo. 196; LeBeau v. Armitage, 47 Mo. 138; Ells v. Railroad, 51 Mo. 200. (6) But the matters appellants attempt to prove do not tend to establish an equitable defense even if they had been pleaded. The Equitable Mortgage company, with full knowledge that both the power of attorney under which the trustee was acting, as well as the notice of sale, described the first mortgage, directed the trustee to proceed with the sale. They then had the trustee execute to the purchaser at the sale a trustee's deed which they had prepared, which recited that the sale was made under the first mortgage. A party can not claim that an act thus deliberately done was a mistake. The mistake, if any was made, was one of law in supposing that the trustee could, by a simple announcement, make a sale under the first mortgage a sale under the second mortgage, but "ignorantia legis neminem excusat." Mathews v. Kansas City, 80 Mo. 231; Brown v. Fagan, 71 Mo. 563; White v. Graves, 68 Mo. 218; Rice v. Groffman, 56 Mo. 434; Dailey v. Jessup, 72 Mo. 144; 2 Pom. Eq., sec. 854; 1 Story's Eq., sec. 110.
This is an action of ejectment for lands in Polk county, Missouri, described as the southeast quarter of the southeast quarter of section 26, and north half of the northeast, and northeast quarter of northwest quarter and ten acres off the north side of the southeast quarter of northeast quarter of section 35, all in township 34, range 22 west, 170 acres.
Plaintiff alleges he was entitled to said lands on the twenty-eighth day of November, 1890, and avers the ouster by defendant on December 1, 1890, asks for possession, damages in the sum of $ 500 and rents and profits at $ 25 per month.
The action was commenced against Moffitt alone, but at the April term, 1891, defendant Wilkinson, on his motion and by consent, was made defendant also. Defendant Moffitt admitted he was in possession as the tenant of Wilkinson and denied all other allegations in the petition, and Wilkinson admitted that Moffitt 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 at the rate of seven per cent. per annum, payable semi-annually on first 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 party 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 one hundred and twenty dollars ($ 120), payable in ten 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, 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, 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 authorizing Hadlock to make the sale and act as trustee instead of said Page, and in which it was recited that said...
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