Hayden v. Lauffenburger

• Citation: 57 S.W. 721,157 Mo. 88
• Parties: HAYDEN, Appellant, v. LAUFFENBURGER et al
• Decision Date: 12 June 1900
• Court: United States State Supreme Court of Missouri

57 S.W. 721

157 Mo. 88

HAYDEN, Appellant, v. LAUFFENBURGER et al

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Reversed and remanded (with directions).

Massey & Tatlow for appellant.

(1) A full and complete legal title is shown from the testimony to be in the plaintiff, and in this action he is entitled to recover. Schanewerk v. Hoberecht, 117 Mo. 22; Keet v. Baker, 141 Mo. 175; Leeper v. Lyon, 68 Mo. 216; Hunt v. Selleck, 118 Mo. 588. (2) There is no merger in this case -- would have been none even if satisfaction of the deed of trust had been legally made on the record. It was the intention of all of the parties to the deed of trust, that it should be kept alive until legal title of the premises should be vested in Swinney Banking Company and equity will keep alive a mortgage, even after the debt is paid, if it is necessary to preserve the rights of mortgagor or mortgagee. Christy v. Scott, 31 Mo.App. 331; Walker v. Goodsill, 54 Mo.App. 631; Swope v Leffenwill, 72 Mo. 348; Orrick v. Durham, 79 Mo. 174; Collins v. Stocking, 98 Mo. 290; Williams v. Brownlee, 101 Mo. 309; Ess v Griffith, 128 Mo. 50; Hutchinson v. Swartzetter, 31 N.J.Eq. 205; Lilly v. Palmer, 51 Ill. 331; Frey v. Vanderhoof, 15 Wis. 397; Ladd v. Wiggins, 69 Am. Dec. 551; Vannece v. Bergan, 85 Am. Dec. 531.

Wm. O. Mead and T. T. Loy for respondents.

(1) The deed of trust to the sheriff is void. He has no power to contract in his official capacity for a conveyance to him in his official character, nor to accept a deed. Douthitt v. Stinson, 63 Mo. 268; Martindale on Conveyancing, sections 34, 68, 70, 121, 362. (2) The deed of trust from Dunnaway to the Swinney Banking Company provides for a sale "at Springfield, in the town of Springfield" which is too indefinite and uncertain to justify a sale thereunder even though the sheriff had power to sell, and a sale and deed thereunder can not be sustained in an action at law. (3) The sale is void for the reason that the notes were paid off and were in the hands of the maker, marked "paid in full," and the sale could not have been made at the request of the legal holder of the notes.

OPINION

VALLIANT, J.

Ejectment for a town lot in Ash Grove.

The real issues in which the case turns are tendered on the affirmative answer of defendant Brock, in the nature of an equitable cross-action. The other defendant is the tenant of Brock.

The answer states substantially that one Dunnaway was the owner in fee of the property and that on the twenty-ninth of March, 1893, he executed a deed of trust which was duly recorded, conveying the same to a trustee to secure certain notes that he owed to Swinney Banking Company; that thereafter Dunnaway paid the notes and the bank returned them to him, and thereafter defendant Brock became the purchaser of the premises at a sheriff's sale under a judgment against Dunnaway, received the sheriff's deed to the same and thereby became the owner of the land in fee simple; that afterwards the Swinney Banking Company became involved and its affairs passed into the hands of receivers; and after that one Swinney, who was the chief stockholder in the bank, conspired with Dunnaway and the plaintiff to defraud the defendant, and in furtherance of that purpose caused the premises to be sold under the power contained in the deed of trust (which had not been released of record); that the receivers became the purchasers at the sale and conveyed the same to plaintiff; that both the receivers and plaintiff purchased with knowledge of the facts above stated and paid no consideration for their purchase. The charge in the cross-bill is that the transaction complained of was a fraud and conferred no valid title on plaintiff, but that his deed clouds the defendant's title and the prayer is that it and the deed of trust and the trustee's deed be cancelled. The reply admits that Dunnaway was the owner, that he executed the deed of trust, and denies the other allegations.

The evidence shows the facts to be as follows: The deed of trust dated March 29, 1893, was to secure four notes, dated January, 1893, aggregating something over $ 500; the bank also had a chattel mortgage on some horses to cover the same debt. In June, 1893, a controversy arose between the bank and Dunnaway in regard to their affairs, involving among other questions the amount of credits he was entitled to on the notes, and they agreed to leave the whole business to arbitration. Each selected one arbitrator and those two being unable to agree called in a third, and an award was agreed upon, which was in effect that the bank should have the lot and one or two of the horses, in full satisfaction of the notes and expenses incurred. Dunnaway was to have the rest of the horses, three or five, and the bank was to be given time, probably thirty days, in which to decide whether it would foreclose the deed of trust or take a quitclaim deed from Dunnaway. In either case the bank was to have the property for the debt and expenses incurred, and Dunnaway was to have the notes in exchange for the property. If the bank should foreclose, and a sum sufficient to pay the notes should not be realized, still the notes were to be returned to Dunnaway and the bank was to pay the cost of the foreclosure. The bank was also to pay the cost of the arbitration, and pay the livery bill for taking care of the horses. The award was in writing, but was not delivered to either of the parties, and was lost; it was never returned into court, and no judicial action was taken on it. The horses awarded to Dunnaway were delivered to him, and he executed a quitclaim deed to the lot to Swinney for the bank, dated June 26, 1893; Swinney took possession, added some improvements to the house and premises, and then sold the property to the plaintiff, and gave him possession. The quitclaim deed was not recorded, and the deed of trust was not released on the record. After the arbitration was over, just how long after is not shown, probably a month, one of the arbitrators, without the bank's knowledge, gave the notes to Dunnaway. In June, 1897, Dunnaway returned the notes to the plaintiff, and therefore he caused the deed of trust to be foreclosed by the trustee, at which sale the receivers of the bank became the purchasers and made a deed conveying it to the plaintiff. That is the plaintiff's title.

On June 2, 1893, a judgment was rendered against Dunnaway in a justice's court of Greene county, for $ 82.75, a transcript of which was filed in the circuit clerk's office on June 6, 1893. In September, 1895, execution was issued on the judgment, under which the sheriff in due course sold this property on October 12, 1895, to defendant Brock, and made her a deed to the same and she through her tenant and codefendant, is now in possession under that sheriff's deed and that is her title.

From the first to the tenth of October, 1895, while the sheriff's advertisement of this sale was pending, one Allen conducted a correspondence by mail with Dunnaway, who was then living in Arkansas, in which he represented to Dunnaway that he, Allen, had bought the lot, without saying from whom or in what manner, and desired to clear his title by having the deed of trust satisfied on the record, asking him to send him the notes, promising to give him $ 15 if he would do so, and threatening to prosecute him if he did not. The result was Dunnaway consulted an attorney in Arkansas who advised him to mark the notes "paid in full" which he did, and sent them, for inspection, to Allen, by this attorney, who carried them in person and returned them to Dunnaway with the $ 15 Allen had promised. Who Allen was acting for in the matter is not entirely clear from the evidence, probably for defendant Brock; at all events, he was not acting for the plaintiff or the bank. Dunnaway then kept the notes until he sent them to the plaintiff as above stated in June, 1897, shortly before the foreclosure sale.

There was a finding and judgment for defendants, and the plaintiff appealed.

Since the answer states that Dunnaway was the common source of title, and the evidence shows a title from him through the deed of trust and trustee's deed to plaintiff, which is senior and therefore superior to the title of defendant derived from the same source, the...