Hudson Brothers Commission Co. v. Glencoe Sand & Gravel Co.
| Decision Date | 15 June 1897 |
| Parties | Hudson Brothers Commission Company v. Glencoe Sand and Gravel Company et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
R. M Nichols for appellant.
(1) Appellant paid $ 3,750 to respondent for its lease and to Martha A. Beard for her equity and as a part payment to respondent on its mortgage notes. Where there has been a partial payment of the purchase money, or the vendee has placed valuable improvements, the action of ejection does not lie. The vendor has other remedies. Courtney v Woodworth, 9 Kan. 443; Holcomb v. Dowell, 15 Kan. 379; Staley v. Murphy, 47 Ill. 263; Cythe v. La Fountain, 51 Barb. 186; Baker v. Railroad, 57 Mo. 268; Hubbard v. Railroad, 63 Mo. 68; Webster v. Railroad, 116 Mo. 114; Scarritt v. Railroad, 127 Mo. 303. (2) Upon the payment of the $ 3,750 appellant was put in possession of the leased premises. The contract was an entirety and a rescission must have been of the entire contract, i. e., by respondent and by the Beards; no partial rescission would avail. Johnson v. Bedwell, 43 N.E. 246. (3) Respondent, as the vendor of the lease, could not maintain its action in ejectment until it had tendered or returned the $ 3,750 received by it on the contract of sale. Newell on Eject., sec. 4; Staley v. Murphy, 47 Ill. 263; Johnson v. Jackson, 27 Miss. 498; Hairston v. Jaudon, 42 Miss. 380; Frink v. Thomas, 20 Ore. 271; Fay v. Oliver, 20 Vt. 118; Drew v. Peddlar, 87 Cal. 443. (4) Where the tender is pleaded as only having the effect of extinguishing the lien of the mortgage, and not of destroying the debt, it is not necessary to keep the tender good and pay the money into court, and such tender will have that effect, although made after the law day. Kortright v. Cady, 21 N.Y. 343; Olmstead v. Tarsney, 69 Mo. 396; Thornton v. Bank, 71 Mo. 221; Ins. Co. v. Norris, 74 Hun. 527; Cass v. Higebotham, 100 N.Y. 251; Von Housen v. Kanouse, 13 Mich. 308; Eslow v. Mitchel, 26 Mich. 500; Mitchel v. Roberts, 74 F. 776; Loghborough v. McMevin, 74 Cal. 250; Boone on Mortgages, sec. 145. (5) A lawful tender by the purchaser of equity of redemption will destroy the lien of the mortgage. Thornton v. Bank, 71 Mo. 221; Frost v. Bank, 70 N.Y. 553; Yeager v. Groves, 78 Ky. 276; Brown v. Simmons, 45 N.H. 211; Kortright v. Cady, 21 N.Y. 343. (6) As held in the above cases, so in Missouri it is held "that a mortgage or deed of trust in the nature of a mortgage is regarded as a mere security for a debt in such sense; that upon the satisfaction of the debt the title or interest conveyed by the mortgage or deed of trust reverts to the mortgagor or grantor or his assigns by mere operation of law." McNair v. Picotte, 33 Mo. 57; Pease v. Iron Co., 49 Mo. 124. (7) If a tender and refusal of the full amount of the debt extinguished the lien of the mortgage, then the power of sale contained in the deed of trust became inoperative and the trustee's deed absolutely void, both at law and in equity. Cupples v. Galligan, 6 Mo.App. 62; Koehring v. Muemminghoff, 61 Mo. 403; Long v. Long, 79 Mo. 644; Siemers v. Schrader, 88 Mo. 20; Scheidt v. Crecelius, 94 Mo. 322; Hill v. Carter, 59 N.W. 413.
John W. Noble, George H. Shields, and John R. Warfield for respondents.
(1) The "lease" so-called is a mere mining license. It conveys no estate or property in the land itself, but only a license to search and get the materials named. Boone v. Stover, 66 Mo. 430; Springfield v. Cole, 130 Mo. 1. (2) The license to mine could be transferred only by deed. Desloge v. Pearce, 38 Mo. 588; R. S. 1879, sec. 2510; R. S. 1889, sec. 5183. (3) The possession given under the contract of purchase, without transfer of the term of the license, was a license at will, and upon failure by vendee to perform, ejectment would lie without notice or demand. Desloge v. Pearce, supra. (4) And if the effect of the averment can be held to state a transfer of the license, it also averred that the licenses acquired the equity of redemption, and thus the license was merged. The defendant licensee became its own licensor or landlord. Wood on Land. and Ten., sec. 505. (5) It is not averred that the contract of purchase thus alleged was performed; but it is only averred that the purchase price was to be $ 10,000, and $ 3,750 only was paid for the whole purchase, and that the balance was to be paid at the expiration of one year. (6) It is not averred that any notes were given on this contract nor that any improvements were made on the premises by either of them; and the authorities cited by appellant as to rescission are all based on such circumstances. (7) And even if the contract of purchase had been for the fee simple itself, without averment of performance by the vendee, possession obtained under it can not prevail in an action of ejectment. De Bernardi v. McElroy, 110 Mo. 650; Gibbs v. Sullens, 48 Mo. 237; Fulkerson v. Brownlee, 69 Mo. 371; Rose v. Perkins, 98 Mo. 253; Glascock v. Robards, 14 Mo. 350; Collins v. Stocking, 98 Mo. 290-293; Avery v. Railroad, 113 Mo. 561. (8) While the defendant seeks to obtain release of the lien of the deed of trust by a mere tender, it does not aver that the sum tendered was the amount due on the notes. The tender must be shown to have been for the whole amount due, even on defendant's own theory. Tuthill v. Morris, 61 N.Y. 94; Benson v. Hore, 45 Minn. 40. (9) In this case the defendant did not owe the debt of which the notes were evidence alone, but it did owe the contract price for the mortgage, the lease, and the equity. Yet it does not make tender on its own debt, but expressly avers it solely tendered a certain sum of money in payment of the mortgage notes. The two liabilities were not the same. Woolner v. Levy, 48 Mo.App. 469; McGuire v. Brockman, 58 Mo.App. 307. (10) Tender of the amount due on a mortgage debt does not release the lien of the mortgage, unless kept good and brought into court, and even then it merely stops interest on the debt. Landis v. Saxton, 89 Mo. 375, which construes section 1008, Revised Statutes, now sections 2937, 2938, Revised Statutes 1889. (11) Tender after maturity of the debt does not remove the lien of the deed of trust or mortgage by which it is secured. Crain v. McGoon, 86 Ill. 431; Stockton v. Dundee, 22 N.J.Eq. 56; McMahon v. Schoonmaker, 51 N.J.Eq. 95; Perre v. Castro, 14 Cal. 519; Himmelmann v. Fitzpatrick, 50 Cal. 650; Merritt v. Lambert, 7 Paige, 344; Maywood v. Hunt, 5 Pick. 240; Currier v. Gale, 9 Allen, 522; Post v. Arnot, 2 Denio, 344; Tuthill v. Morris, 61 N.Y. 94; Cowles v. Marble, 37 Mich. 158; Bailey v. Metcalf, 6 N.H. 156; Mathews v. Lindsay, 20 Fla. 973; Parker v. Beasley, 116 N.C. 1. (12) Ejectment can not be maintained in New York against the grantor of deed of trust or a mortgagor. This is the statute law of that State. Sutton v. Mason, 38 Mo. 120; Johnson v. Houston, 47 Mo. 230; Bailey v. Winn, 101 Mo. 649. (13) And it is the established doctrine of this honorable court, that the power of sale in a deed of trust is not a mere naked authority, but a power coupled with an interest and where the trustee conveys the property even though in breach of trust, the title becomes absolute in his vendee in a court of law, and the same can be questioned only in equity. Schanewerk v. Hoberecht, 117 Mo. 22; Lanier v. McIntosh, 117 Mo. 508; Kennedy v. Siemers, 120 Mo. 73; Springfield, etc., Co. v. Donovan, 120 Mo. 423; Snyder v. The Chicago, etc., Co., 131 Mo. 568; Biffle v. Pullam, 125 Mo. 108. These cases overruled expressly, Powers v. Kueckhoff, 41 Mo. 425; Long v. Long, 79 Mo. 644; Seimers v. Schrader, 88 Mo. 20, and on principle Koehring v. Muemminghoff, 61 Mo. 403, which rests largely on Powers v. Kueckhoff, supra.
OPINION
In Banc.
-- This is an ejectment suit, instituted in the circuit court of St. Louis county, on the fourteenth day of November, 1893, by Hudson Brothers' Commission Company, a corporation, Benjamin F. and Wm. A. Hudson and A. D. Scott, against Glencoe Sand & Gravel Company, a corporation, John E., Martha A. and Louis Beard, and afterward by change of venue taken to the circuit court of the city of St. Louis.
The petition, in the usual form, is to recover a tract of land in St. Louis county. The answer of defendants, the Beards, was a general denial, and an allegation that they were tenants of defendant corporation. The answer of said corporation was a general denial and two special defenses. The first of these charges in brief, that Mrs. Beard, by a trustee, was the original owner of the land, and in 1885 made to plaintiffs a lease for a term of twenty-five years, beginning April 10, 1885, and ending April 10, 1910, of the right of entering upon said land and mining and carrying away gravel, sand, ballast and fire clay, and also to carry on all necessary quarrying and mining operations thereon. The consideration for the lease was one fourth of the net profits of what was mined and taken from the land. The lease was duly recorded April 17, 1885, at 10:28 in the forenoon. That subsequently, on the said tenth day of April, 1885, the said defendant Beard and her trustee conveyed said property to one Henry L. Wilson in trust to secure to plaintiffs certain promissory notes of said date, maturing in one, two, three four and five years, and bearing ten per cent interest, aggregating the sum of $ 11,280, which deed of trust was recorded on the seventeenth of April, 1885, at 10:29 o'clock in the forenoon. That said defendants, Beard, afterward paid large sums on said notes, aggregating $ 2,000, and were entitled to credits thereon for royalty and rentals which...
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