Hannah v. Davis
| Citation | 20 S.W. 686,112 Mo. 599 |
| Parties | Hannah et al., Appellants, v. Davis et al |
| Decision Date | 12 December 1892 |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
Lewis & Ramsey for appellants.
(1) The court erred in finding for and in rendering judgment in favor of defendants. Under the pleadings and evidence the judgment should have been for plaintiffs. First. Plaintiffs had the right under our statutes to levy upon the land in question whether Mills' interest was legal or equitable. Revised Statutes 1889, sec. 4915; Eddy v. Baldwin, 23 Mo 588; Neff v. Seely, 49 Mo. 209; Matson v Capelle, 62 Mo. 235. Second. As both plaintiffs and defendants claimed through the same person, Frank D. Mills it was unnecessary to prove the title back of him. Plaintiffs' attachment and sale took whatever title Mills had, and Moore, his subsequent grantee, could not show any other outstanding title. Mathews v. Lecompt, 24 Mo. 545; Smith v. Lindsey, 89 Mo. 76. Third. That plaintiffs had a prima facie case is not seriously questioned. (2) The court erred in attempting to take an accounting, and in subrogating defendants to the Hendricks deed of trust, and in strict foreclosure of same. First. Defendants in their answer did not ask for subrogation or foreclosure, and did not offer an account or state one. Second. Even if there had been anything to foreclose, a strict foreclosure was not permissible under the laws of this state. Revised Statutes 1889, sec. 7078; O'Fallon v. Clopton, 89 Mo. 284. Third. As Hendricks, the trustee of the deed of trust, if still in force, was the legal owner, a complete foreclosure could not be had without his being made a party, which was not done. Baker v. Nall, 59 Mo. 265; Siemers v. Schrader, 88 Mo. 20. Fourth. Defendants in their answer show that Mills sold and released his equity of redemption in the mortgaged land to said Moore in the payment of said notes secured by said deed of trust "by quitclaim deed, dated December 4, 1884," and there is nothing to show that it was done by mistake or error or through any fraud, nor do they ask to have it re-established or reinstated, being satisfied it was not a subject of foreclosure or other equitable relief. White v. Todd, 10 Mo. 190; Atkins v. Augest, 46 Mo. 515; Collins v. Stocking, 98 Mo. 290. (3) The court under its own findings should have given judgment for plaintiffs, and it erred in not doing so. Defendants had no equities to be protected, and the court erred in finding for them. Bunn v. Lindsay, 95 Mo. 250; White v. Todd, 10 Mo. 190; Atkins v. Augest, 46 Mo. 515.
Hunt & Bailey for respondents.
(1) The whole spirit and purpose of the action of ejectment is to try title. Clarkson v. Stanchfield, 57 Mo. 573; Dunn v. Miller, 8 Mo.App. 467. (2) The party in possession is considered to be the owner until the contrary appears, and plaintiffs must recover upon the strength of their own title and not upon the weakness of the defendants' title. Adams on Ejectment [4 Ed.] p. 33, and cases cited in foot note on page 43; 2 Greenleaf on Evidence [13 Ed.] secs. 303, 304, 307, p. 295; Simmons v. Schrader, 14 Mo.App. 347; S. C., 88 Mo. 20; Foster v Evans, 51 Mo. 39. (3) Although the trust deed was acknowledged by the trustee, yet nevertheless it is a good deed or mortgage between the parties, and will bind them and all those holding under them or those who purchased with notice. Stevens v. Hampton, 46 Mo. 404; Doil v. Moore, 51 Mo. 589; Black v. Gregg, 58 Mo. 565; Siemers v. Kleeburg, 56 Mo. 196; Bennett v. Shipley, 82 Mo. 448; Cooley v. Rankin, 11 Mo. 642; Caldwell v. Head, 17 Mo. 561; Williams v. Bank, 72 Mo. 292; Martin v. Nixon, 92 Mo. 26. (4) The attachment suit was not brought until the seventh day of October, 1884, ten months after condition was broken, and the legal title had vested in the trustee or mortgagee. Reddick v. Gressman, 49 Mo. 389; 1 Jones on Mortgages [3 Ed.] sec. 39, foot page 28. (5) It is a wellsettled principle that attaching creditors acquire no better right or title to the property attached than the debtor in the attachment had in the property attached at the time of the attachment. Drake on Attachment [2 Ed.] secs. 222, 223, foot page 169; Ensworth v. Thomas, 50 Mo. 477; Lackey v. Seibert, 23 Mo. 85; Huxley v. Harrold, 62 Mo. 517; Mann v. Best, 62 Mo. 491; Craven v. Christie, 53 Mo. 287. (6) Moore had a vendor's lien upon that land for the purchase money, and it exists independent of any agreement between the parties. It is treated as a constructive or implied trust and raised by implication, and is not within the operation of the statute of frauds; therefore, if our mortgage was wholly ill, yet would the plaintiffs be precluded from recovering in this action; for they purchased with full knowledge of the vendor's lien. And they can in no sense be said to be innocent purchasers. Pratt v. Clark, 57 Mo. 189; Bennett v. Shipley, 82 Mo. 448; Gill v. Clark, 54 Mo. 415. (7) One who buys land subject to vendor's lien, with notice of the same, takes it subject to the same. Bronson v. Wanzer, 86 Mo. 408. By receiving a mortgage to secure the purchase money the vendor does not waive his lien. Linvill v. Savage, 58 Mo. 248.
Plaintiffs began this action in ejectment in April, 1888, against Mr. Davis, defendant, tenant in possession of a tract of land in Atchison county. The other defendants voluntarily came in as the heirs and personal representatives of Mr. Moore, who died in 1887, after the occurrence of the principal events out of which this litigation grows.
All the defendants stand upon the rights acquired by Mr. Moore.
Shortly stated, the case is this: In 1883 Mr. Moore owned the tract of land now in litigation and conveyed it to Mr. Mills by deed of general warranty. At the same time he took from Mills a deed of trust (in the nature of a mortgage) on the same property to secure notes of Mills, maturing during seven years, at intervals of one year each, for various sums aggregating $ 1,950, the full amount of the purchase money (mentioned as the consideration in the deed of Moore to Mills). The notes carried interest at ten per cent., compounded annually; and the terms of the security were that, in default of the payment of any of the notes or interest, the whole debt should become at once payable. The first note matured in January, 1884, and was not paid.
In October, 1884, the present plaintiffs levied an attachment on this property in an action against Mills, which resulted in a judgment against him for $ 230.18 in October, 1885. Under the judgment plaintiffs had the land sold on execution, and became the purchasers in January, 1886. Their claim of title rests upon the sheriff's deed, following that sale.
In December, 1884, some time after the default upon the first note of Mills (and after Moore had likewise begun an attachment suit against him on the notes), he executed and delivered to Moore a deed of quitclaim to this property for the recited consideration of $ 1 (the real one being $ 25, as shown by the evidence). In this instrument occurs the following language in addition to the ordinary words of conveyance, viz.:
"This deed is given for, and in consideration of, the purchase money for said lands, and in full payment of the notes executed, and the mortgage or trust deed given on said lands by grantor to grantee of record in the county of Atchison and state of Missouri, in the recorder's office thereof, which said notes and mortgage are now on file in a suit in the office of the clerk of the circuit court in and for said Atchison county, wherein said grantee is plaintiff and said grantor is defendant."
Upon the delivery of this deed Mills gave up possession to Moore. The latter afterwards rented the premises to defendant Davis as tenant, and he remained in possession, under Moore or his heirs, until the present action was brought.
At the execution sale in 1886 (when plaintiffs bought Mills' interest in the land), an attorney, acting for defendants, gave public notice "of all the facts connected with the Moore chain of title existing at the time of said sheriff's sale" (according to the bill of exceptions on this appeal).
The conveyances above mentioned were all recorded about the time of their respective dates; but it should be noted that Mills' deed of trust to Moore, as beneficiary, was acknowledged before the trustee, acting as notary public.
The most of these facts relied upon by defendants were set up as an equitable defense in their answer, and the court was prayed to adjudge their rights and equities to be superior to those of plaintiffs, and that the premises be first applied to the payment of the mortgage debt, for general relief, etc. To that defense plaintiff made reply, admitting the giving of the Mills notes for the purchase money, secured by the deed of trust; but charging, in substance, that these notes had been paid, satisfied and discharged, and praying for judgment and for all other, further or different relief to which they might be entitled and equity would allow."
A trial was had before Judge Anthony, who, after finding the facts above indicated, adjudged that defendants had an interest in the land to the extent of the unpaid purchase money and interest, amounting to $ 2,452.17, after charging them with rents and profits (fixed at $ 160, yearly), from the time Moore took possession, and that plaintiffs had the equity of redemption; accordingly a decree was entered September 30 1889, that plaintiffs might redeem the land by paying the last-named amount of the purchase money on or before the fourth of December, following; otherwise to stand debarred from setting up any right or...
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