Hubble v. Vaughan

• Decision Date: 31 January 1868
• Parties: M. J. HUBBLE, Appellant, v. JAMES VAUGHAN et al., Respondents.
• Court: Missouri Supreme Court

42 Mo. 138

M. J. HUBBLE, Appellant,

v.JAMES VAUGHAN et al., Respondents.

Supreme Court of Missouri.

January Term, 1868.

Appeal from Greene Circuit Court.

Plaintiff claimed the property in controversy by virtue of two judgments rendered in his behalf, against John McHenry, in 1855. These judgments, as appeared in evidence, were satisfied by a sale of the property on execution. Plaintiff became the purchaser, and received a deed from the sheriff of Greene county, dated in 1864, conveying to him McHenry's interest in the premises.

Defendant claimed under a mortgage of the same property, given by McHenry to John Bailey, in 1854, to secure certain notes, which the latter paid, and took possession of the mortgaged property soon after the execution of the mortgage. From that time he remained in possession till 1863, when the property was sold under an execution against Bailey, and defendant purchased it, but received no deed from the sheriff.

Most of the facts necessary to a clear understanding of the case are set forth in the opinion of the court.

Sherwood & Lindenbower, and Ewing & Holliday, for appellants.

I. The motion of the plaintiff to strike out part of defendant Vaughan's answer should have prevailed. The part sought to be stricken out set up the defective or incomplete or imperfect execution of a statutory power as an equitable defense. (Moreau v. Detchemendy, 18 Mo. 522; Moreau v. Branham, 27 Mo. 351; Haley v. Bagley, 37 Mo. 363; Hiney v. Thomas et al., 36 Mo. 377; Webb v. Cochran, 4 Sandf. 653.)

II. To defeat a plaintiff's recovery in ejectment by showing an outstanding title in a third person, such outstanding title must be a present subsisting and operative title, and such an one as the owner could recover on were he asserting it in an action against the defendant. (McDonald v. Schneider, 27 Mo. 410.)

Phelps & Baker, for respondents.

I. Plaintiff in ejectment can only recover upon the strength of his own title.

II. Title of mortgage after forfeiture is such an outstanding title as will prevent a recovery in ejectment. (Meyer v. Campbell, 12 Mo. 603.) A mortgagee may maintain an action of ejectment against the mortgagor and those claiming under him. (Sutton v. Mason, 38 Mo. 120; McCormack v. Fitzsimmons et al., 39 Mo. 24; Walcoss v. McKinney's heirs, 10 Mo. 229; 1 Hill on Mortg. p. 134, §§ 15, 16, 17, 18; p. 140, § 12; p. 149, note; p. 229, § § 26, 27.)FAGG, Judge, delivered the opinion of the court.

This was an ordinary action of ejectment to recover the possession of parts of two lots situate in the city of Springfield. The cause seems to have been tried upon the separate answer of Vaughan--one of the defendants disclaiming any interest in the property, and the other not appearing.

In addition to the general issue, the answer contains a lengthy, detailed statement of facts, which it is claimed constituted an equitable defense to the action. This statement proceeds to show the defendant Vaughan's possession of the premises by virtue of a sale and conveyance made by the sheriff of Greene county under an execution levied upon the premises in question as the property of one Joshua M. Bailey. It is further alleged that in the month of October, 1854, one John McHenry, being the owner of the said property, executed a deed of mortgage of the same to Bailey, for the purpose of securing him against any liability as his surety upon a note to one J. I. Campbell for the sum of $2,250. After the note became due, it was paid off by Bailey.

This mortgage was duly recorded; and a short time after the payment of the note the possession of the premises was delivered to Bailey, who continued to hold the same down to the time when the defendant Vaughan became the purchaser thereof, except during the periods when the same was held by the military authorities. It is also alleged that a suit was instituted by Bailey to foreclose his mortgage, upon which there was a judgment, and the property sold in the month of March, 1856, he being the purchaser thereof for the sum of $495, but that no deed had been executed to him by the sheriff of said county. The remainder of the note paid by Bailey was alleged to be still due and unpaid. There are some other matters stated, not material in the consideration of the case, and therefore not necessary to be referred to. The answer of the defendant then concludes with the following prayer: “that judgment be rendered in his favor, and that by a decree of this court the plaintiff be forever barred and precluded from setting up a title to said lots against this defendant and those claiming under him.”

The plaintiff made an unsuccessful effort to have all of the answer of defendant stricken out, except so much as contained a plea of the general issue, together with the admission that the lots in question had formerly belonged to McHenry.

The action of the Circuit Court, in this particular, presents the first point for our consideration.

It is insisted on the part of the appellant that error was committed, in the fact that the equitable defense amounted to nothing more than the showing of an incomplete or imperfect execution of a statutory power. If that be true, then certainly it should not have been treated as a defense. The statute...