Gale v. Mensing

• Decision Date: 31 March 1855
• Citation: 20 Mo. 461
• Parties: GALE, Appellant, v. MENSING, Respondent.
• Court: Missouri Supreme Court

20 Mo. 461

GALE, Appellant,

v.MENSING, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. A conveyance by a trustee passes the legal title, although he may be guilty of a breach of trust.

2. The effect of the satisfaction of a mortgage is to extinguish the incumbrance upon the title, for the benefit of whoever is the owner of it at the time.

3. A conveyance to trustees, for the benefit of creditors who should sign it, is not as a matter of law, void, because of the omission of the creditors to sign it.

Appeal from Franklin Circuit Court.

Action for the possession of six lots in the town of Washington, claimed by the plaintiff under a sheriff's deed upon an execution sale, under a judgment against B. & A. King. Matthew Caldwell, the landlord of the defendant, also claimed title under the Kings.

The Circuit Court, trying the cause without a jury, found substantially the following facts:

On the 4th of June, 1838, the Kings mortgaged the lots in controversy to Matthew Caldwell to secure an indebtedness of $300. On the 6th of June, 1838, they conveyed to C. S. Jeffries and W. V. N. Bay, trustees for the benefit of creditors, all their estate, real and personal, in law or equity, directing the mode and manner of sale and the proceedings of the trustees in the execution of the trust. The trustees were authorized to sell at public or private sale. By the terms of this deed, it was necessary that the creditors should sign it, in order to receive any benefits under it. (This deed was not set out in the finding, nor were its provisions, further than above stated, nor did it appear in the record.) On the 3d of March, 1841, Bay and Jeffries conveyed the lots to Matthew Caldwell in consideration of an acknowledgment by him of satisfaction of the mortgage, which was entered upon the record on the same day. This deed recited that the lots were not worth more than the amount for which they were mortgaged to Caldwell, and therefore the trustees made the conveyance to avoid the expense of a foreclosure.

On the 20th of March, 1843, an alias execution issued upon a judgment recovered against the Kings, October 31st, 1838, under which these lots were levied upon and sold to the plaintiff on the 5th of April following.

Upon these facts, the Circuit Court gave judgment for the defendant, and the plaintiff appealed to this court.

J. W. Noell, for appellant.

I. After the execution of the mortgage to Caldwell, and the deed of trust to Jeffries and Bay, the Kings still owned the equity of redemption, which Jeffries and Bay had no power to convey.

II. The sale by Jeffries and Bay to Caldwell was void. They had no power to give him the land in payment of his debt. All they could do was, to sell the land subject to Caldwell's mortgage, for the benefit of the creditors secured by the deed of trust. The execution of powers of sale by trustees must be in strict conformity to the terms of the trust.

III. The deed of trust to Bay and Jeffries, at the time of their convey ance to Caldwell, had, by its own terms, become a...