Haley v. Bagley

• Decision Date: 28 February 1866
• Citation: 37 Mo. 363
• Parties: W. H. HALEY, Appellant, v. DAVID BAGLEY, Respondent.
• Court: Missouri Supreme Court

37 Mo. 363

W. H. HALEY, Appellant,

v.DAVID BAGLEY, Respondent.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Sullivan Circuit Court.

The petition stated that defendant, by his deed of mortgage, conveyed to Charles Haley a tract of land--describing it--upon which stood a steam saw and grist mill, with boilers and machinery, &c., to secure a debt due to said Charles Haley, and that said deed contained a power of sale by said mortgagee, in default of payment. That it was intended that said deed should convey the mill, with its machinery, &c., but that by mistake, accident or fraud, the deed did not include the mill or machinery in its description. That under the power, Charles Haley sold the land and plaintiff became the purchaser; that he was ignorant of the mistake at the time of his purchase, and prayed to correct the mistake, &c., so that the mill and machinery might be included. Charles Haley was not made a party to the suit. A demurrer was interposed, upon the grounds of defect of parties, and want of equity; which was sustained, and the plaintiff appealed.E. B. Ewing, for appellant.

WAGNER, Judge, delivered the opinion of the court.

It appears from the record that Bagley, the respondent, was the owner of certain real estate in Sullivan county, and was indebted to one Charles Haley in the sum of six hundred dollars. That for the purpose of securing the payment of the money so due, he executed and delivered to the said Charles Haley a mortgage on the premises, which mortgage contained a power authorizing him to sell the same, if default was made in the payment of the debt, when it matured. The money not being paid at maturity, Haley, in pursuance of the power, proceeded to advertise and sell the property, when W. H. Haley, the defendant, became the purchaser, and received a deed from the mortgagee. The mortgage was duly recorded in the Recorder's office in Sullivan county. After the sale and conveyance, it was discovered that the land was not properly and correctly described in the mortgage, and the appellant filed his petition in the Circuit Court, in the nature of a bill in equity, charging that through accident or mistake, or the fraud of the respondent, the land was misdescribed, and alleging the insolvency of the respondent; and prayed that he might be restrained by injunction from committing waste on the premises, and also that the deed of mortgage to Charles Haley be corrected and reformed.

The petition was demurred to, because...