Hagerman v. Sutton

• Decision Date: 28 February 1887
• Parties: HAGERMAN v. SUTTON.
• Court: Missouri Supreme Court

4 S.W. 73

91 Mo. 519

HAGERMAN v. SUTTON.

Supreme Court of Missouri.

February 28, 1887.

1. HUSBAND AND WIFE — REAL ESTATE OF WIFE — MORTGAGE.

A wife, being seized in her own right of real estate, joined her husband in executing a note and mortgage thereof. Held that, though under the rule of Musick v. Dodson, 76 Mo. 624, her signing the note was a nullity, since she had no separate estate in the land, this did not avoid the mortgage, since it was competent for her thus to mortgage her land.

2. MORTGAGE — FORECLOSURE — JUDGMENT — MARRIED WOMAN — DEFICIENCY.

The mortgage was foreclosed, the wife being made a party defendant. The judgment contained the usual deficiency clause, giving a personal judgment against her. Held, that this did not invalidate the sale under the foreclosure, since only the property mortgaged was sold.

3. MORTGAGE — ASSIGNMENT — TRANSFER OF NOTE — RELEASE.

In Missouri the transfer of a note secured by mortgage transfers the mortgage; and, after the transfer, the mortgagee has no power to release any part of the property mortgaged, and such a release by him is void.

4. VENDOR AND VENDEE — BONA FIDE PURCHASER — NOTICE.

A purchaser of real estate incumbered with a mortgage, but which purports to be released by an attorney in fact, is charged by the record with notice that the power of attorney describes a different tract of land from that released, and is not an innocent purchaser.

Appeal from circuit court, Schuyler county.

M. & H. Hagerman, for appellant. Higbee & Railey, for respondent.

SHERWOOD, J.

Ejectment for N. E. ¼ of S. E. ¼ of section 1, township 66, range 15, in Schuyler county, Missouri. In 1871, Mary F. Gray was seized in her own right of the property in suit, as well as of other real estate. She joined with her husband in executing a promissory note and mortgage to Downing, the mortgage embracing the land in controversy as well as other lands. The note had five years to run, was negotiable in form, and was transferred, as Downing testified, immediately after being executed for value to plaintiff. In November, 1872, Mary F. Gray and husband executed a bond for a deed to defendant for the land now in controversy, the bond being recorded on the day of its execution. Afterwards, on the eighth of March, 1873, Downing executed a power of attorney to John Baker, authorizing him to release a mortgage on the Schuyler county record, state of Missouri, wherein James M. Gray and wife are mortgagors, and William G. Downing mortgagee, as to the N. E. ¼ of the S. W. ¼ of section 1, township 66, range 15. This power of attorney was acknowledged and recorded on the day of its execution, and on the same day a release was entered on the margin of the record of the Gray mortgage, as follows: "I, John Baker, attorney in fact for William G. Downing, do hereby release the north-east qr. of the south-east qr. of section 1, township 66, range 15, as described in this mortgage, this eighth of March, 1873. JOHN BAKER."

An objection to the introduction of this release in evidence was made by plaintiff on the ground that the same was made after he had purchased the note and mortgage, and because Baker had no power to make the same; but this objection was overruled, and the point saved. On the twenty-sixth of March, Gray and wife conveyed the land in suit, correctly described by general warranty deed, to defendant, and this deed was put to record May 6th of that year. Defendant on his part testified that he bought the land through Richardson at $5 per acre; paid $100, when title-bond was executed, the bond being made because the land was mortgaged. Afterwards he paid the other half of the purchase money, relying on the statements of Richardson and Baker that Downing told them that he still owned the note and mortgage, and relying on the statement of Baker that he had released the land from the mortgage, showing him at the same time the entry of release already mentioned; but defendant also admitted that the N. E. ¼ of the S. E. ¼, etc., belonged to himself and Graves. This land is the same as that described in the power of attorney from Downing to Baker. Defendant stated that he took possession of the land in suit 11 years before the trial of this action, and as this trial occurred in November, 1883, presumably he took possession in 1872, when the title-bond was made. After taking possession, he fenced the land, cleared it, paid taxes from time he bought land up to 1882, and never heard of plaintiff's claiming it until the present action was brought. Plaintiff testified that he resided in Keokuk, Iowa, and bought the note in 1871 or in 1872, in good faith, in the ordinary course of business, and had never heard of any claim that Downing had given Baker a power of attorney to release the land in controversy until after receiving the sheriff's deed at the foreclosure sale. This occurred in October, 1877. Before the suit for foreclosure was brought, James M. Gray died, and Mary F. Gray, remaining unmarried, was duly served with process, and was the sole party defendant, against whom the judgment of foreclosure was rendered. At the conclusion of the judgment is the usual general deficiency clause where a mortgagor is personally summoned, but only the property mortgaged was sold. Mrs. Gray is the common source of title. The answer of defendant, in substance, charged that the power of attorney from Downing to Baker, owing to a mistake of the scrivener, failed to properly describe the land, asked for reformation, charging the plaintiff with knowledge at the time he purchased the note from Downing. The reply denied all notice, and claimed that the purchase of the note was made in good faith, and prior to maturity, etc.

As to the release, Downing's testimony shows that he never intended to release any of the land mortgaged by Gray and wife to him, but only to release from the mortgage a 40, which was said to be inadvertently inserted therein, and did not belong to Mrs. Gray. On this point there was conflict in the testimony. When the evidence was closed, the court gave the following declaration of law: "That plaintiff cannot recover herein, because the decree of foreclosure offered in evidence, and set out in paragraph three of plaintiff's evidence, was void for the reason that Mrs. Gray, the defendant therein, having been a married woman at the time the note and mortgage were executed." Thereupon plaintiff excepted, and comes here by appeal. I have thus briefly outlined the testimony, as prefatory to the discussion of the points presented by the record.

1. Under the ruling made in Musick v. Dodson, 76 Mo. 624, the act of Mrs. Gray in signing the note in conjunction with her husband, she not being possessed of a separate estate in the land granted, gave her act validity neither in law nor equity. But it does not thence follow that because this is so, that the mortgage of her land which she joined her husband in executing was null. It was perfectly competent for her thus to mortgage her land. Wilsox v. Todd, 64 Mo. 388. And when her husband died, and the mortgage debt matured, she was properly made the party defendant to the suit for foreclosure, and the result of such a suit would ordinarily be to cut off her equity of redemption as effectually as if she had been discovert at the time the note was executed. Of course, she could not properly be made personally responsible for the debt, but her land was bound by the mortgage for the note and interest, and the statute authorized her, as the mortgagor, to be sued, and her equity of redemption foreclosed. Rev. St. 1879, § 3305. With the exception above noted, the judgment of foreclosure is in usual form, and cannot be regarded as a personal judgment against her, except the general deficiency clause already noted. Does this clause render the judgment void in so far as to affect plaintiff's title acquired under another clause of that judgment? I am not of the opinion that it does, and these are my reasons: There was no sale made under the foreclosure proceedings except of the property mortgaged. In Fithian v. Monks, 43 Mo. 502, which is erroneously mentioned as a judgment against a married woman, the judgment, one of foreclosure, was collaterally attacked; but there Mrs. Fithian was not a mortgagor, but only the grantee in a deed poll made by Barnard to her, wherein it was stated that she had assumed, as a part of the consideration for the premises, to pay off the incumbrance; and it was adjudged that notwithstanding that Mrs. Fithian had been personally served with process, that such relief was expressly asked for in the petition, that judgment should go against Barnard, the mortgagor, and Mrs. Fithian, if the mortgaged premises should be insufficient to pay the mortgage debt; yet that the proceedings, being simply one at law for the foreclosure of a mortgage, and Mrs. Fithian not being a mortgagor, the court had no jurisdiction to render a judgment against her personally, though it had a "general jurisdiction as to matters of both law and equity, and had a special jurisdiction at law under the statute, yet that it had no authority, under the constitution and laws of this state, to take cognizance of such a cause, and grant such relief;" and that such portion of the judgment was a nullity, and no title passed by a sale of her land, not included in the mortgage. The clear intimation given in that case is that the residue of the judgment, though at law, was valid, so that, applying the principle of that case to the one at bar, the foreclosure sale should be held valid; for here only the mortgaged premises were sold, and, besides, Mrs. Gray was a mortgagor, and the only mistake made was in that portion of the judgment which allowed other land of hers to be sold, a portion which was never enforced by execution.

In Massey v. Scott, 49 Mo. 278, a general judgment was rendered in an attachment suit where the only service was by publication; and it was ruled...