Grant v. Huston

• Decision Date: 15 May 1891
• Citation: 105 Mo. 97,16 S.W. 680
• Parties: GRANT v. HUSTON.
• Court: Missouri Supreme Court

16 S.W. 680

105 Mo. 97

GRANT v. HUSTON.

Supreme Court of Missouri, Division No. 1.

May 15, 1891.

SCHOOL-FUND MORTGAGES — FORECLOSURE — SALE WHEN COURT IS NOT IN SESSION.

1. A mortgage to a county to secure a loan of school funds is not rendered invalid by reciting that it was for the use of a specified section of school land, instead of for the use of the township to which the fund belonged. Distinguishing Douthitt v. Stinson, 63 Mo. 268 2. Rev. St. Mo. 1855, p. 1424, § 22, prescribes the requisites of school-fund mortgages, and requires them to authorize the sheriff to sell in case of default. Subsequent sections prescribe what notice shall be given, where the sale shall be made, etc. Held, that while sales under these statutory mortgages must be made during sessions of court, yet where a school-fund mortgage contains other provisions prescribing the notice, time, place, manner, and terms of sale, and declaring that the sheriff's deed shall be as effectual as if made under judgment of a court, it is valid as a common-law mortgage, and a sale thereunder when the court is not in session confers a valid title.

Appeal from circuit court, Vernon county; D. P. STRATTON, Judge.

T. J. Myers, for appellant. M. T. January, for respondent.

BLACK, J.

This is ejectment for a parcel of land in Hall's addition to Nevada. The plaintiff's title is a deed to him from V. O. Grant, dated the 14th March, 1859. The defendant put in evidence the following deeds: First, a mortgage from V. O. Grant and wife to Vernon county, dated the 18th May, 1858, and recorded 29th October, 1858, conveying 20 acres of land, of which the land in suit is a part; second, a deed signed by the sheriff of that county, dated the 26th March, 1860, purporting to have been made in execution of the power of sale contained in the mortgage, conveying the 20 acres to Thomas J. Marris; third, sundry other deeds vesting all the title which Marris acquired in the defendant. The circuit court found the issues for the defendant, and plaintiff appealed.

1. Plaintiff objected to the mortgage as evidence on the ground that it was void because Vernon county had no power to hold lands in trust for section 16, there being no such a person or corporation, which objection was overruled, and this ruling presents the first question. The mortgage conveys the land to Vernon county by appropriate words to secure the payment of a bond executed by Grant to the county for the payment of $600 "for the use of section 16, township 34, range 31 west," payable in one year, with 10 per cent. interest. That this mortgage was given to secure the payment of school funds borrowed by Grant is too clear to admit of doubt; so that the objection resolves itself into this: the bond was made to the county for the use of a designated school section of land, when it should have been made to the county for the use of the township to which the fund belonged. This error in describing the particular fund loaned does not in the least affect the validity of the bond or deed of trust. The county is the custodian of these school funds, and it is made the duty of the county courts to loan such funds, and to take mortgages upon lands as security. The case of Douthitt v. Stinson, 63 Mo. 268, cited by the appellant, has no application to the case in hand. It was held in that case that a deed which professed to convey land to a corporation which had no existence was void, and passed no title. But here the county is the grantee in the mortgage and payee of the bond....