Friel v. Alewel

• Citation: 298 S.W. 762,318 Mo. 1
• Decision Date: 10 October 1927
• Docket Number: 26263
• Parties: John Friel et ux. v. Mrs. Frank H. Alewel and John D. Kerr, Trustee, Appellants
• Court: United States State Supreme Court of Missouri

298 S.W. 762

318 Mo. 1

John Friel et ux. v. Mrs. Frank H. Alewel and John D. Kerr, Trustee, Appellants

No. 26263

Supreme Court of Missouri

October 10, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Reversed and remanded (with directions).

Alphonso Howe for appellants.

(1) No notice of sale is required of a trustee further than the advertisement. Oakey v. Bond, 286 S.W. 27. (2) The pleadings raise equitable issues; therefore, the case is one of equitable jurisdiction. Herbert v. Dahlke, 277 Mo. 516; Dumm v. Cole County, 287 S.W. 445; Lee v. Conran, 213 Mo. 404. (3) An action in ejectment may be joined in the same petition with an action to quiet title. Lane v. Dowd, 172 Mo. 167; Grimes v Miller, 221 Mo. 640; Jamison v. Galloway, 254 S.W. 101; Mann v. Doerr, 222 Mo. 1. (4) Where plaintiff alleges a fee-simple title, he must prove such title. Stewart v. Lead Belt Land Co., 200 Mo. 281; Finley v. Babb, 144 Mo. 403; Robinson v Claggett, 149 Mo. 153. (5) A release of a fraudulent deed of trust by one not the owner of the note thereby secured is void even as against subsequent purchasers for value and in good faith. Borgess Investment Co. v. Vette, 142 Mo. 560; Wilkens v. Fehrenbach, 180 S.W. 22. (6) Absent statutes, in order that a proceeding other than an action may have the effect of stopping the running of the Statute of Limitations, it must be equivalent to an action at law or a suit in equity. 37 C. J. 1094. (7) The statutes provide two concurrent methods of foreclosure of deeds of trust with power of sale, namely, either by suit, or foreclosure by trustee's sale at the option of the holder of the debt or obligation thereby secured, etc. Therefore the one method is the equivalent of the other, and it was optional with the holder of the debt which method he should pursue. The statutory provisions, providing the method of foreclosure, are a part of the agreement. Secs. 2222-2234, R. S. 1919; Also see Section 2219; 41 C. J. 830-835, secs. 1008, 1009, 1010, 1012. (8) A suit, action or proceeding must have been begun before the note was barred, because when the note was barred by limitations, the deed of trust was also barred. Herbert v. Dahlke, 277 Mo. 516; Alewel v. Johnson, 212 Mo.App. 211.

Jones, Hocker, Sullivan & Angert for respondents.

(1) The notes secured by the deed of trust dated May 23, 1910, were all matured on May 23, 1913, and therefore were barred on May 23, 1923, ten years after maturity. Bush v. White, 85 Mo. 360; R. S. 1919, sec. 1316. (2) Under our statute with reference to the foreclosure of mortgages and deeds of trust, "no suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the Statute of Limitations of this State." R. S. 1919, sec. 1320; Hower v. Erwin, 221 Mo. 93; Bobb v. Taylor, 184 S.W. 1028. (3) The publication of a notice of sale under the deed of trust, including the several insertions, and the act of the trustee in crying the sale, together constituted the "proceeding under power of sale to foreclose" the deed of trust. Odea v. Washington Co., 3 Nebr. 121; Johnson v. Jones, 2 Nebr. 127; Strom v. Railway Co., 84 N.W. 47; State ex rel. West v. McCafferty, 105 P. 996; State ex rel. Carleton v. District Court, 82 P. 790. The foreclosure is not complete until the sale is made. 41 C. J. 889. (4) In order that a "proceeding" other than an action may have the effect of stopping the running of the Statute of Limitations, it must be equivalent to an action at law or suit in equity. The mere publication of the first insertion could not amount to a "proceeding." Blackwell v. Barnett, 52 Tex. 334; Duncan v. Menard, 32 Minn. 460; Slater v. Roche, 126 N.W. 925; Fish v. Collins, 160 N.W. 163; 17 R. C. L. 809; 25 Cyc. 1324. (5) The rule of ejusdem generis should be applied in construing the language of Section 1320, namely, "no suit, action or proceeding . . . shall be had or maintained," and the words "or proceeding" must be held to refer to a proceeding equivalent to a suit or action. State v. Wade, 267 Mo. 257; Regan v. Ensley, 283 Mo. 307; State ex rel. v. Wurdeman, 227 S.W. 67; Deiner v. Sutermeister, 266 Mo. 520; St. Louis v. Laughlin, 49 Mo. 559; State v. Dinnisse, 109 Mo. 438; State v. Grisham, 90 Mo. 165-166.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

This is a suit in equity to try, ascertain and determine title to a certain parcel of land in Block 1037 of the city of St. Louis, fronting thirty feet on the north line of the street, known as 3125 Lucas Avenue. Tried before the chancellor, a decree was entered adjudging plaintiffs to be the absolute owners of said parcel, defendants appealing therefrom.

The evidence warrants the finding that plaintiffs and defendants claim from a common source of title, one Philip T. May. The defendants claim by virtue of a deed of trust executed by said Philip T. May on May 23, 1910, which defendants caused to be foreclosed, defendant, Mrs. Alewel, subsequently acquiring title from the successful bidder. The foreclosure title rests upon a sale had on June 15, 1923, based upon the publication of a notice of sale under power of sale in the deed of trust, the first insertion published on May 22, 1923, followed by publications to and including June 15, 1923. The notes, secured by the deed of trust, were dated May 23, 1910, and, running three years, matured May 23, 1913. Plaintiffs claim title by mesne conveyances from said Philip T. May, emanating from a warranty deed executed by him on October 1, 1910.

The pleadings comprise a petition, an answer including cross-bills, and replies. We need not notice the petition further than to remark that it relies on the inefficacy of the publication of May 22, 1923, to toll the Statute of Limitations. Defendant's answer avers the efficacy of the publication to toll the statute and give her title. Her cross-bills comprise an action in ejectment, and a suit to try and determine title. Plaintiffs' reply restates largely the matter of the petition, while defendants' replies are general denials.

The facts developing that the foreclosure sale, under the deed of trust, dated May 23, 1910, was had on June 15, 1923, pursuant to the publication of a statutory notice of sale otherwise full and competent, both plaintiffs and defendants concede that the sole substantive inquiry relates to the efficacy of the first publication of the notice of sale, on May 22, 1923, to toll the Statute of Limitations on the note expiring by limitation on May 23, 1923.

I. However, plaintiffs primarily raise a question of procedure, which we must notice. It relates to the sufficiency of the assignment of errors. We are unable to see how the inquiry could have been more effectively raised than by stating, in substance, that the trial court erred in holding that the first publication of the notice of sale, on May 22, 1923, was insufficient to stop the running of the Statute of Limitations. Other assignments of error also preserve the question, but we think it is unnecessary to further encumber the opinion by enlarging the examination of them.

II. It may not be amiss to say that the evidence sanctions the finding that one Rogers, a suicide, probably a partner of Philip T. May, forged notes, dated May 23, 1910, duplicating those held by Mrs. Alewel's father and secured by the deed of trust, and presented them to the Recorder of Deeds of the City of St. Louis, causing the spurious release of the deed of trust in 1913. It is evident that this particular encumbrance did not affirmatively appear as a lien when plaintiffs acquired title later. It is further evident that the record evidence charges neither plaintiffs nor defendants with knowledge or delinquency with respect to the fraudulent release of the deed of trust. They stand equally innocent of blame or guilty knowledge. Consequently the maxim, "Where the Equities are equal the Law will prevail," applies.

III. We return to the inquiry of the efficacy of the first publication of the notice of sale to toll the Statute of Limitations. The pertinent portion of Section 1320, Revised Statutes 1919, as amended at pages 202, 203, Laws 1921, reads:

"No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statutes of limitation of this State."

Construing Section 1320 conjointly with Section 1316, to which it inferentially refers, it is evident from the recorded facts that the note, maturing on May 23, 1913, was barred ten years thereafter (Bush v. White, 85 Mo. l. c. 360), unless the record warrants the finding that the running of the statute became arrested.

IV. Plaintiffs aver that, to the words, "No suit, action or proceeding," found in Section 1320, the rule ejusdem generis is applicable, because the word "proceeding" synonymizes with the preceding words "suit, action." We are unable to agree that the rule is apposite, for the word "proceeding," as used in the statute, is not inferentially limited to the preceding class by the use of some qualifying adjective, such as "other," but the word "proceeding" was intended to refer to a course of action independent of a suit or action, filed in a court of equity or law, to foreclose. That the law-making body so intended is accentuated by the authorized foreclosure procedure, as exemplified by Chapter 19, Article 2, Revised Statutes 1919, comprising Sections 2219, et sequa, providing concurrent methods of foreclosure, first, by petition filed in the circuit court, and, second, by tr...