Gates v. Tebbetts
| Decision Date | 08 June 1903 |
| Citation | 75 S.W. 169,100 Mo.App. 590 |
| Parties | HENRY B. GATES, Respondent, v. C. E. TEBBETTS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
Reversed and remanded.
J. D McCue for appellant.
(1) The effect of the Nebraska foreclosure suit upon the indebtedness secured by the mortgage foreclosed, must be determined by the law of Nebraska which entered into and became as much a part of the decree as if specially inserted therein. Smith v Moore, 53 Mo.App. 531; Minor's Conf. of Laws, sec 4; State v. Grant, 79 Mo. 122; State v. Gilmore, 141 Mo. 506. (2) Whatever effect these proceedings would have under the laws of Nebraska on the indebtedness secured, the same effect must be given them in this State. Mills v. Duryea, 7 Cranch 481; Hamilton v. Connell, 3 Wheaton; Smith v. Moore, 53 Mo.App. 531; Destrehan v. Scudder, 11 Mo. 484; Barney v. White, 46 Mo. 137; Wernse v. McPike, 100 Mo. 476; Iron Works v. Riggin, 14 Mo.App. 321. (3) The decree in the foreclosure suit is a bar to an action on the original cause of action. Wernse v. McPike, supra; Iron Works v. Riggin, 14 Mo.App. 321. (4) The plaintiff, having elected to pursue his remedy in the courts of Nebraska is bound by the restrictions and conditions imposed by the laws of that State, as that State had the power to prescribe whatever restrictions and conditions its judgment or policy might dictate. Bronson v. Kinzie, 1st Howard (U.S.) 321; Minor's Conf. of Laws, sec. 4; Iron Works v. Riggin, 14 Mo.App. 321. (5) By the repeal of section 847 and the amendment of section 848 of the statute of Nebraska regulating proceedings in foreclosure by action, the legislature of that State took away from the plaintiff all remedy, legal or equitable, to recover or to enforce the payment of any balance of the debts secured by the mortgage, remaining unsatisfied after the sale of the premises; this was done with the intent of destroying the right. Type Foundry v. Jackson, 128 Mo. 129, and cases cited therein; McMerty v. Morrison, 62 Mo. 140; Berkeley v. Tootle, 163 Mo. 595. (6) The effect of the foreclosure proceedings was to merge in the decree the indebtedness secured by the mortgage. This was the only decree that the court could enter in said action. It was, therefore, a final decree under the Nebraska statute, and has all the force and effect of final judgment in that State. Tourville v. Railroad, 148 Mo. 614; Winham v. Klein, 77 Mo.App. 36; Barker v. Berry, 70 Mo.App. 680; Cowgill v. Robberson, 75 Mo.App. 412.
Karnes, New & Krauthoff for respondent.
(1) In the recent case of Hawes v. Mulholland, 78 Mo.App. 493, 497, this court considered the effect of the execution of a note, and the giving of a mortgage to secure the payment of the note. It was contended that a "mortgage and note are parts of one entire and inseparable contract, and that plaintiff must sue and recover, if at all, on the two combined." "The mortgage was not introduced in evidence and the plaintiff claimed the right to treat the note as a contract complete and independent of the mortgage." This contention of the plaintiff in that case was answered by this court. Owings v. McKenzie, 133 Mo. 323; 20 Ency. of Law (2d Ed.) 985; Williamson v. Andrew, 4 Har. (Md.) 482; Shaw v. Burton, 5 Mo. 478; Horn v. Fisher, 2 Barb. Ch. (N. Y.) 559; Railroad v. Johnston, 54 Pa. St. 127; Liggett v. State Bank, 7 S. & R. 218; Shaver v. Bear River, etc., Co., 10 Cal. 396; Lander v. Amo, 65 Me. 26; Sherwood v. Dunbar, 6 Cal. 53; Longworth v. Flagg, 10 Ohio 300; Fleming v. Parry, 24 Pa. St. 47; Burwell v. Martin, 2 Dougl. 417; Very v. Watkins, 18 Ark. 546; Draper v. Mann, 117 Mass. 439; Ely v. Ely, 6 Gray 439; Goodrich v. White, 39 Mich. 489; Copperthwait v. Dummer, 18 N. J. L. 258; Hatfield v. Kennedy, 1 Bag. (S. Car.) 501; Watson v. Hawkins, 60 Mo. 550; Young v. Clifford, 61 Mo.App. 450. (2) The Nebraska statutes affect the remedy merely, not the obligations of the parties, and have no extra-territorial force or effect. Ruhe v. Buck, 124 Mo. 178; Minor's Conflict of Laws, sec. 180. (3) The usury laws of Illinois have nothing to do with this case. Land Co. v. Rhodes, 54 Mo.App. 129; 1 Rand. Com. Pap., sec. 44.
The plaintiff sued to recover on a certain principal note and coupons executed by defendant and his wife in the State of Nebraska on the 1st day of June, 1897, and made payable in the State of Illinois. The debt was secured by a mortgage on certain lands situated in the former State.
The defense is, that when said notes became due on the 16th day of July, 1900, the plaintiff instituted an action in chancery in the district court of Gage county, Nebraska, the county in which the lands described in said mortgage was situated, to foreclose said mortgage in the manner prescribed by the statutes of the State; that in said proceedings personal service was had upon defendant's wife, Ella F. Tebbetts, and service by publication upon this defendant. Thereafter, and on the 11th day of February, 1901, the said plaintiff, by the consideration of said court and upon an accounting had, it was found by said court that there was due the said plaintiff on the principal note and interest coupons thereto attached, the sum of $ 1,455.98, for which sum and costs judgment was entered in said cause, and it was further adjudged and decreed if the defendants failed for the period of 20 days thereafter to pay the plaintiff the said sum of money so adjudged to be due, together with interest thereon, that the equity of redemption of said defendants and each of them be foreclosed, and said mortgaged premises be sold, and an order of sale be issued to the sheriff of Gage county, Nebraska, commanding him to sell the said real estate as upon execution and to bring into court the proceeds thereof to be by the court applied in satisfaction of said judgment.
Defendant further says, that thereafter an order of sale was issued to the sheriff of said county of Gage, in the State of Nebraska, pursuant to the judgment, decree and order of said court in said action, commanding him to sell said real estate as upon execution, and thereafter on the 16th day of December, 1901, the sheriff, pursuant to said command, did offer the real estate for sale, and did sell the same to the plaintiff therein, he being the highest bidder therefor; as will more fully appear by the copy of the record of proceedings in said cause attached to the original answer filed herein, and marked "Exhibit A," and herein referred to as part of this answer, as fully and to the same extent as if pleaded herein. Defendant further says, that at the time of the execution of the said notes and mortgage, as well as at the time of the proceedings in said cause in the district court of Gage county, Nebraska, the following provisions of the statutes of Nebraska were in full force in said State, that is to say: The hereinafter quoted sections were part of the code of civil procedure of said State, to-wit:
Defendant further says, that prior to the execution of said note and mortgage, there had been a provision of the code of civil procedure of Nebraska, which provision was "section 847" thereof, which provided:
"When a petition shall be filed for the satisfaction of a mortgage, the court shall not only have the power to decree and compel the delivery of possession of the premises to the purchaser thereof, but, on the coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which such balance is recoverable at law; and for that purpose may issue the necessary execution as in other cases against other property of the mortgagor."
Defendant says, that said last mentioned section of the code was repealed by an act of the legislature of the State of Nebraska, approved May 11, 1897, and was not in force at the time of the rendition and entering of the judgment in the case of Henry B. Gates against the defendant, Ella F. Tebbetts, and this defendant, in the district court of Gage county, Nebraska, as hereinbefore stated. And defendant further says, that by the provisions of said sections 845, 846 and 848, as hereinbefore set forth, and the proceedings in foreclosure had in pursuance thereof, as hereinbefore stated, the said debt became discharged and extinguished, and the said plaintiff forever barred from maintaining an action at law to recover upon the debt secured by the mortgage, as hereinbefore set forth. Defendant further says, that at the time of the commencement of said action to foreclose said mortgage in the district court of Gage county, Nebraska, in chancery, the plaintiff could have had an action under said statutes at law to recover upon the said notes, but having elected to proceed in chancery, he became and was barred from any action at law on said note.
The plaintiff filed his motion for judgment on the pleading which the court sustained, and judgment was...
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