Gardner v. Terry

• Decision Date: 27 January 1890
• Citation: Gardner v. Terry, 12 S.W. 888, 99 Mo. 523 (Mo. 1890)
• Parties: GARDNER v. TERRY et al.
• Court: Missouri Supreme Court

12 S.W. 888

99 Mo. 523

GARDNER v. TERRY et al.

Supreme Court of Missouri.

January 27, 1890.

INJUNCTION — ADVERSE POSSESSION — APPEAL.

1. One who has been in adverse possession as against a trust-deed for the period of limitation may enjoin a sale under the deed, as such sale would cast a cloud on his title.

2. A suit for an injunction against a sale under a trust-deed, brought by one who alleges title by adverse possession which would defeat the deed, is one involving title to real estate, of which the Missouri supreme court has jurisdiction on appeal.

BARCLAY, J., dissenting.

Appeal from circuit court, Franklin county; A. J. SEAY, Judge.

John W. Booth, for appellant. Isaac T. Wise and John H. Pugh, for respondents.

BLACK, J.

Gardner brought this suit against William M. Terry and the administrator of William H. Lamoreaux, to enjoin the sale of two lots under a deed of trust in which Terry is the substituted trustee and the estate of Lamoreaux is the beneficiary. The court sustained a demurrer to the petition, and gave judgment thereon, to reverse which the plaintiff appealed.

The petition discloses the following facts: William H. Lamoreaux, being the owner of the two lots in question, conveyed them to Isaac Brooks by a deed dated 26th August, 1869. On the same day Brooks gave Lamoreaux a deed of trust on the lots to secure two notes, both payable to Lamoreaux, — one for $500, payable in 10 days, and the other for $625, payable on the 1st March, 1870. The $625 note has never been paid, and from this averment it seems the other one had been paid. On the 29th February, 1872, Brooks conveyed the lots to Sarah V. Lamoreaux, and she at the same time executed a deed of trust thereon. The property was sold under this deed of trust, and Brooks again became the purchaser; and he conveyed to Hall in 1878, who conveyed to the plaintiff in 1882. The administrator of W. H. Lamoreaux caused the defendant Terry to be substituted as trustee in the deed of trust first mentioned, which was executed by Isaac Brooks, and advertised the property for sale under that deed of trust. This is the sale which plaintiff seeks to enjoin. He states in the petition that he and his grantors have been in the actual, open, notorious, adverse possession of the lots for more than 10 years, and that the deed of trust is barred by the statute of limitations; and this is the ground upon which he seeks to enjoin the proposed sale.

Although a note secured by a deed of trust may be barred by limitation so that no personal judgment can be had on it, it does not follow that the remedy on the deed of trust is barred. To defeat a foreclosure or other remedy on the deed of trust there must have been 10 years' adverse possession. These principles of law have been often asserted by this court. Booker v. Armstrong, 93 Mo. 58, 4 S. W. Rep. 727, and cases cited. On the facts, as they are stated in the petition in this case, it must be conceded that the deed of trust and all remedy thereon is barred by reason of the 10 years' adverse possession, and the question is whether this fact furnishes a good ground for injunctive relief. In general, the statute of limitations is in defense only, but 10 years' adverse possession of real estate will not only bar an action of ejectment, but it will confer title upon the possessor. A title thus acquired is as good as any other title, and ejectment may be maintained as well as defended upon such a title. Nelson v. Brodhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 20. It is therefore difficult to see why a title thus acquired is not entitled to the same protection as a title acquired in any other way. The objection made to the relief asked is that plaintiff can avail himself of the defense in an action of ejectment brought by the purchaser at the trustee's sale. That he could do this there can be no doubt, but it is not a complete answer to the right to the relief asked. The relief is demanded on the ground that the sale will cast a cloud on the plaintiff's title. The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created. McPike v. Pen, 51 Mo. 63; Martin v. Jones, 72 Mo. 24; Vogler v. Montgomery, 54 Mo. 577. In Harrington v Utterback, 57 Mo. 519, the plaintiff was the owner of a...