Hubbard v. Dahlke
| Decision Date | 28 March 1919 |
| Citation | 210 S.W. 652,277 Mo. 516 |
| Parties | GEORGE H. HUBBARD v. EMMA DAHLKE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Morgan Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed (with directions).
A. L Ross and H. G. Pope for appellant.
(1) Plaintiff should not be heard to interpose the Statute of Limitations as a bar to the relief prayed for by defendant in her answer and cross petition. If Seiffert had been in possession at any time he was in no position to dispute the title of appellant, because he bought and took title subject to the encumbrance held by her. His claim of title was not hostile to that of appellant and never became hostile. Respondent stepped into Seiffert's shoes, and cannot make any greater or more effective claim of title than Seiffert could make. Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 49; Eyerman v. Pyron, 151 Mo. 117; McMurray v. McMurray, 180 Mo. 527; Sauter v. Leveridge, 103 Mo. 615; State ex rel v. Allen, 124 Mo.App. 465; Cobb v Houston, 117 Mo.App. 645; Chiles v. School District, 103 Mo.App 240; Bensley v. Haeberle, 20 Mo.App. 648; Stayton v. Gastain, 221 Mo. 712; Chouteau v. Riddle, 110 Mo. 366; Combs v. Goldsworthy, 109 Mo. 160; Benton v. Czarlinsky, 101 Mo. 275. (2) Plaintiff was the agent for defendant in the sale of the land in controversy and for the payment of taxes thereon, and law and equity prohibit him from purchasing the property and taking title in his name, and by purchasing the property under such circumstances he made himself liable as trustee in relation thereto for the benefit of defendant, his principal, and he is estopped from acquiring title to said land. 31 Cyc. 1432, 1434; Grumley v. Webb, 44 Mo. 444; Cummings v. Parker, 250 Mo. 437; Meek v. Hurst, 223 Mo. 688; Corder v. O'Neill, 207 Mo. 647; Euneau v. Rieger, 105 Mo. 659, 673; Atlee v. Fink, 75 Mo. 104; McClure v. Ullman, 102 Mo.App. 703; Smith v. Tyler, 57 Mo.App. 672; Dennison v. Aldrich, 114 Mo.App. 708; Rogers v. Lockett, 28 Ark. 290; Hardenbergh v. Bacon, 33 Cal. 356; Ringo v. Binns, 10 Pet. 269; Cragin v. Powell, 128 U.S. 691; Essex Trust Co. v. Enwright, 47 L. R. A. (N. S.) 567; Hutton v. Sherrard, 1915 E. L. R. A. p. 976 foot-note; Witte v. Storm, 236 Mo. 470; Murdock v. Milner, 84 Mo. 96, 102; 1 Am. & Ency. Law (2 Ed.), p. 1085. (3) Defendant, by adverse possession for more than ten years, obtained title to said land, even though the foreclosure of the mortgage lien on the property was defective, and is entitled to have the title adjudged in her. Turner v. Hall, 60 Mo. 271; Bartlett v. O'Donoghue, 72 Mo. 563; Leeper v. Baker, 68 Mo. 407; Shea v. Shea, 154 Mo. 600.
Capron, Butcher & Knoop for respondent.
(1) Actions to quiet title are actions at law and when tried before the court the court sits as a jury. Brandt v. Bente, 177 S.W. 377. (2) An action on the note secured by the mortgage sought to be foreclosed was long since barred by the Statute of Limitations, and by virtue of Sec. 1892 appellant's action to foreclose the mortgage was also barred. Sec. 1892, R. S. 1909, Laws 1891, p. 184. (3) Since the enactment of said statute an action to foreclose a deed of trust is barred when an action on the note secured by the deed of trust is barred. Howe v. Erwin, 221 Mo. 101; Bumgardner v. Wealand, 197 Mo. 433; Higgins v. Harvester Co., 181 Mo. 310. (4) In the fourth count of appellant's cross petition appellant attemps to plead an estoppel. Neither the allegations in the count, nor the evidence offered in support of it, are sufficient to estop respondent. Blodgett v. Perry, 97 Mo. 263; Weir v. Lumber Co., 186 Mo. 388. (5) The evidence in support of appellant's claim of title by adverse possession is wholly insufficient. Chilton v. Comanianni, 221 Mo. 699; Nye v. Alfter, 127 Mo. 529.
Action to try title. Petition in the conventional form, including, however, the allegation that the land involved is in the possession of no person, and the further allegation that plaintiff is unable to describe the interest of defendant, because such interest is not known to plaintiff.
The answer plead (1) general denial; (2) by way of answer and cross-bill she avers that she held a mortgage deed given by A. F. & L. E. Kull on the land in dispute; that she employed reputable counsel to foreclose this mortgage by suit; that such counsel brought the suit against the two Kulls; that her said counsel bought in the land at special execution sale, under such judgment, and then conveyed to her, and she asked for a new foreclosure of the mortgage deed; (3) this count likewise recounts the foregoing facts and others and asks for a foreclosure; (4) is a plea of estoppel in which it is averred that Hubbard was the agent of plaintiff and was thereby in equity estopped from acquiring an outstanding title against her, and (5) plea of ten-year Statute of Limitations.
The reply fully met the issues of the answer. The court declined to hear evidence on the second and third counts of the answer on the ground that the right to foreclose the mortgage had long since been barred.
On the other matters of defense the trial court found the facts against defendant, and found plaintiff to be the fee simple owner of the land. From such decree, defendant has appealed.
I. The whole trouble (for defendant) in this case arises out of the slip of her counsel in not making the record owner of the land a party to the foreclosure proceeding. The parties at the trial made this admission:
"It was admitted by both parties to this action that the common source of title to the real property in controversy was A. F. Kull and L. E. Kull, his wife; that Kull and his wife executed a mortgage to the defendant, Emma Dahlke, said mortgage being dated November 7, 1893, and being given to secure a loan of $ 400 that they borrowed from said defendant, and due one year after date; that on April 23, 1895, A. F. Kull and L. E. Kull, his wife, conveyed by warranty deed the property in question to John D. Jackson, subject to said mortgage; that on May 13, 1895, said John D. Jackson and wife, Ada, conveyed by warranty deed said property to Jacob Bird, subject to said mortgage; that on November 19, 1895, said Jacob Bird, single, conveyed by warranty deed said property to Louis Seiffert, subject to said mortgage."
Plaintiff then offered a quitclaim deed from Louis Seiffert and wife, Cassie, to himself, in consideration of the sum of fifty dollars. Defendant offered her petition and judgment in the foreclosure proceeding, which shows that it was only foreclosed as to the two Kulls. This proceeding was after Seiffert became the record owner. From this foreclosure sale, thence forward defendant was claiming the land and paying the taxes thereon, but as the land is wild, uncultivated land no one was in the actual possession thereof. We think it clear that the pure record title is in the plaintiff, so that unless defendant is aided by some one of her other defenses, she has lost rightfully on the trial below. There is sufficient pleaded in the answer to carry the case to the equity side of the court. This matter is determined by the pleadings. [Lee v. Conran, 213 Mo. 404, 111 S.W. 1151; Brandt v. Bente, 177 S.W. 377.] Here we have a count charging that plaintiff in good conscience should be estopped from claiming title under his quitclaim deed, because he was and had been the agent of defendant as to these lands, and thereby, knew all the facts.
II. The note and mortgage were given in November, 1893. In 1891 the General Assembly passed an act of two sections. [Laws of 1891, p. 184.] Section 1 of that act is now Section 1892, Revised Statutes 1909, and reads:
"No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the Statutes of Limitations of this State."
Section 2 of the Act of 1891, mentioned, supra, seems to have served its purpose, and has been dropped from the statutes. However it read:
"Nor shall any suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act."
It will be noted that Section 1 of the Act of 1891 had reference to mortgages and deeds of trust executed after the passage of the act. The note and mortgage here involved were executed after the passage of the Act of 1891, and fell within the purview of that law. So that when the note was barred under the law, the right to foreclose the mortgage was likewise barred. The futile attempt to foreclose would not change the situation. The trial court was right in holding that the two counts of the cross-bill asking a foreclosure could not be sustained. The right to foreclose was gone. [Stockton v. Teasdale, 212 Mo. 611; Hower v. Erwin, 221 Mo. 93, 119 S.W. 951; Bumgardner v. Wealand, 197 Mo. 433, 95 S.W. 211.] In other words, as to all mortgages and deeds of trust executed after the Act of 1891 became effective, the right to foreclose the mortgage or deed of trust was barred whenever the note secured thereby became barred.
III. Counsel for defendant seem to have a theory that, because Seiffert bought the land subject to the mortgage, he himself could not invoke the Statute of Limitations as to the bringing of a foreclosure suit. To be exact, here is their contention:
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