Hagerman v. Sutton
| Decision Date | 28 February 1887 |
| Citation | 4 S.W. 73,91 Mo. 519 |
| Parties | Hagerman, Appellant, v. Sutton |
| Court | Missouri Supreme Court |
Appeal from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Special Judge.
Reversed.
James Hagerman and Anderson, Davis & Hagerman for appellant.
(1) The court erred in its declaration of law and in basing its judgment on the ground that Mrs. Gray was married when she executed the note. She was unmarried when sued, and when the decree was taken, she was competent to defend. Yeoman v Younger, 83 Mo. 424; State ex rel. v. Rainey, 74 Mo. 229; Bernecker v. Miller, 44 Mo. 111; Reed v. Vaughan, 15 Mo. 137; Wellshear v Kelly, 69 Mo. 343. (2) The sale, not taking place by virtue of the general deficiency clause of the judgment, but because of the foreclosure as to the specific property involved in this suit, must be sustained as valid. Hoskinson v. Adkins, 77 Mo. 537. Even if the personal part of the judgment be void, that does not avoid the part which forecloses the mortgage. Holton v Turner, 81 Mo. 360; Wernecke v. Wood, 58 Mo. 352; Lennox v. Clarke, 52 Mo. 115. (3) The power of attorney did not describe the mortgage, and, therefore, the court erred in admitting the release, by Baker, entered on the margin of the record. (4) The release was also improperly admitted because the answer conceded that the misdescription in the power of attorney avoided the release, unless corrected. Instead of the "northeast quarter of southeast quarter," it described the "northeast quarter of southwest quarter." The court was asked to correct the mistake. No rule is better settled than that courts of equity will not correct mistakes when the property has passed to innocent parties. Young v. Coleman, 43 Mo. 170; 2 Pomeroy's Eq. Jur., sec. 776; 2 Story's Eq. Jur. [12 Ed.] sec. 139. Here the undisputed evidence showed that plaintiff never knew of any mistake, or of any claim of a mistake, until after he purchased. (6) There was no mistake as a matter of fact. (7) If the court holds the decree of foreclosure valid, that the release of Baker was invalid, as against plaintiff, or that there was no mistake in description in the power of attorney, then we are entitled to judgment in this court, and there is no need of remanding the case.
Higbee & Raley for respondent.
(1) Sutton bought on the faith of Downing's release, who was the record owner of the note and mortgage. He is, therefore, entitled to the protection of the record. Jones on Mortgages [2 Ed.] secs. 811, 837, p. 678; Lewis v. Kirk, 28 Kan. 497; Tiedeman Real Prop., sec. 340, p. 264, and cas. cit.; Williams v. Jackson, 107 U.S. [17 Otto] 478; Williams v. Jackson, 17 Cent. Law Jour. 148. (2) The judgment of foreclosure, being a personal judgment at law upon the obligation of a married woman, was void. Fithian v. Monks, 43 Mo. 502; Hoskinson v. Adkins, 77 Mo. 537; Musick v. Dodson, 76 Mo. 624, 625.
Ejectment for northeast quarter of southeast quarter of section 1, township 66, range 15, in Schuyler county, Missouri.
In 1871, Mary E. 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 execution for value to plaintiff. In November, 1872, Mary E. 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 Wm. G. Downing, mortgagee, as to the northeast quarter of the southwest quarter 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:
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 6, of that year.
Defendant, on his part, testified that he bought the land through Richardson, at five dollars per acre; paid one hundred dollars 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 northeast quarter of the southwest quarter 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 eleven 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 the time he bought the 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 E. 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 forty-acre piece, 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.
I. 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, 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. Wilcox 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. R. S., 1879, sec. 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...
To continue reading
Request your trial
-
Rines v. Mansfield
...R. C. and Elizabeth Mansfield to Duncan, trustee, was valid and operated to convey the wife's interest as well as the husband's. Hagerman v. Sutton, 91 Mo. 519; Thornton Bank, 71 Mo. 221; Morrison v. McKee, 11 Mo.App. 594. (2) "The courts will look at the whole instrument and if it is appar......