Friel v. Alewell

• Decision Date: 10 October 1927
• Docket Number: No. 26263.,26263.
• Parties: FRIEL et ux. v. ALEWEL et al.
• Court: Missouri Supreme Court

298 S.W. 762

FRIEL et ux. v. ALEWEL et al.

No. 26263.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

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

Suit by John Friel and wife against Mrs. Frank H. Alewel and another. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Alphonso Howe, of St. Louis, for appellants.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondents.

DAVIS, C.

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 30 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 incumber 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 incumbrance 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 of 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. 339, loc. cit. 300), 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 lawmaking body so intended is accentuated by the authorized foreclosure procedure, as exemplified by chapter 19, art. 2, Revised Statutes 1919, comprising sections 2219 et seq., providing concurrent methods of foreclosure, first, by petition filed in the circuit court; and, second, by trustee's sale in accordance with the statutes, under the terms and provisions of the mortgage or deed of trust. That the word "proceeding" is not congruous with the words "suit or action" is amplified by the words "under power of sale" immediately following the term "proceeding," which term alone the phrase "under power of sale" attends and qualifies. It is evident the phrase was not intended to qualify the words "suit or action," for such a construction would leave mortgages without power of sale subject to foreclosure after the obligation has been barred by limitation.

V. Having ruled that the statute individuates a "proceeding under power of sale" as a classification distinct from a suit or action, we inquire as to the statutory import of a proceeding. It is defined as "an act or course of action; a transaction or procedure."

It is the contention of plaintiffs that the term "proceeding" comprehends a course of action comprising all steps necessary to a full and complete foreclosure under the deed of trust, including a sale. To support their position that, to validate the foreclosure, every step in the proceeding must be taken before the prescribed period ends, plaintiffs cite Blackwell v. Barnett, 52 Tex. 326; Duncan v. Cobb, 32 Minn. 460, 21 N. W. 714; Slater v. Roche, 148 Iowa, 413, 126 N. W. 925, 28 L. R. A. (N. S.) 702; Fish v. Collins, 164 Wis. 457, 160 N. W. 163; 17 R. C. L. 800; 37 C. J. 1094. None of the authorities, however, cited by plaintiffs, deal with a statute of the import of section 1320; and none of the cases relied on to define a proceeding bear on an act or course of action unrelated to a suit or action. We are of the opinion that a "proceeding under power of sale," as used in the statute, means a course of action or procedure, resulting in competent, orderly, and continuous steps of procedure until the power of sale has been fully exercised in accordance with the statutes appertaining thereto. Plaintiffs argue, however, that the statute, prescribing that no proceeding shall be had or maintained after such obligation has been barred, forces the interpretation that every step in the foreclosure proceeding must have been exercised to toll tho limitation statute. The word "had" is there used in the sense of commenced or begun. In Carson-Rand Co. v. Stern, 129 Mo. 381, 31 S. W. 772, 32 L. R. A. 420, maintained is defined literally as "`to hold by the hand;' hence (in ordinary use) to uphold, to sustain, to keep up.'" In said case the...