Hughes v. Winkleman

• Decision Date: 31 May 1912
• Parties: JOHN C. HUGHES et al., Appellants, v. WILLIAM WINKLEMAN and FIRST NATIONAL BANK of Boone, Iowa
• Court: Missouri Supreme Court

147 S.W. 994

243 Mo. 81

JOHN C. HUGHES et al., Appellants, v. WILLIAM WINKLEMAN and FIRST NATIONAL BANK of Boone, Iowa

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

Felix T. Hughes and T. L. Montgomery for appellants.

(1) The contract being a note payable in Iowa and the parties residing there and a mortgage securing the same on land in Missouri, the entire contract, including the right of the parties thereunder, is governed by the laws of Iowa at the time the contracts were made and entered into in said State -- the law with which the parties were familiar and by which they are presumed to be governed. Thurston v Rosenfield, 42 Mo. 474; Ins. Co. v. Simmons, 52 Mo.App. 358; Bentley v. Whittemore, 19 N.J.Eq. 462; Hazelett v. Woodruff, 150 Mo. 543; Bryan v Bristed, 26 Mo. 423; Clement v. Schmidt, 17 L R. A. 1094. (2) This is not asking a Missouri court to administer justice according to the forms and proceedings of the Iowa code but to give effect to said code in so far as it affects appellant's rights under the contract which brought with it into this state the lex loci contractus. Tower Co. v. Hamilton, 179 Mo. 205; Gates v. Tibbetts, 100 Mo.App. 590; Bank v. Cooper, 85 Mo.App. 383; Long v. Long, 141 Mo. 373; Johnson v. Machine Co., 144 Mo.App. 441; Vennum v. Mertens, 119 Mo.App. 461; Dewolf v. Johnson, 10 Wheat. 367; Trust Co. v. Digest, 89 F. 123; Kuhn v. Morrison, 75 F. 81; Arnold v. Potter, 22 Iowa 194; Ins. Co. v. Simmons, 52 Mo.App. 357; Hazlett v. Woodruff, 150 Mo. 539; Matheny v. Stewart, 108 Mo. 78. (3) The contract brings with it into this State and has impressed upon it the lex loci contractus and the appellants are not seeking a remedy not provided by the laws of this State, but are asking the enforcement of a right provided by the laws of Iowa which this court has declared in cases similar. Foundry v. Jackson, 128 Mo. 119; Berkley v. Tootle, 163 Mo. 584; Moore v. Lucas, 29 Pa. St. 260; County v. Mercantile Co., 84 Ky. 344; Thompson v. Ins. Co., 169 Mo. 12; Scudder v. Bank, 91 U.S. 406; Bank v. Cooper, 85 Mo.App. 383. (4) The force and effect of a deed made between parties domiciled in Indiana of land in Missouri, is solved by the laws of Indiana, and the words "grant, bargain, sell and convey" which by the laws of Missouri implied a covenant of seizure, but the laws of Indiana did not so imply. Bethell v. Bethell, 54 Ind. 428; 1 Wharton on Conflict of Laws (3 Ed.), sec. 276; Clenn v. Whistle, 23 Miss. 42. (5) The rule, that the lex rei sitae applies to real estate or real property contracts is applicable only so far as pertains to the form or mode of execution of the deed conveying the same, and the mortgage in the case at bar being a security for the note is governed by the place of performance of the contract in Iowa. 1 Wharton on Conflict of Laws (3 Ed.), secs. 276a, 276b, 510k; 1 Pingrey on Mortgages (Ed. 1893), secs. 789, 795, 796, art. 4; Lyon v. McQuevaine, 24 Ia. 9; Slacum v. Pomery, 6 Cranch (U.S.), 221; Duncan v. Helm, 22 La. Ann. 418; Trust Co. v. Burton, 74 Wis. 329; Lamar v. Micon, 114 U.S. 218; Watts v. Camors, 115 U.S. 353; Steam Co. v. Ins. Co., 129 U.S. 397; Dulman v. Cook, 14 N.J.Eq. 56; Jones on Mortgages (1 Ed.), sec. 661; Peet v. Peet, 229 Ill. 341. (6) The rules of private international law and comity between the states from the basis for recognizing and enforcing the rights of the parties and is universally recognized by the various courts of the States and everywhere enforced. Trust Co. v. Camp, 71 A. 788; Craig v. Donovan, 63 Ind. 513; Jackson v. Green, 112 Ind. 341; Morley v. Honeman, 6 Ind.App. 240. (7) The appellants are not estopped to claim their rights under the contract by reason of accepting the proceeds of sale as same is tendered back in the reply, there is no estoppel and respondent Winkleman has notice of record and in court proceedings under which he claims title that the contract was an Iowa contract, to be performed according to the laws of that State. Bromell v. Adams, 146 Mo. 70; Eldridge v. Haefer, 93 P. 246.

Berkheimer & Dawson for respondents.

(1) The lex situs governs in all matters pertaining to real property. 1 Wharton on the Conflict of Laws, secs. 273, 274, pp. 607, 608. It is a well affirmed general rule that the laws of a sister State which either give or deny the power to contract, have no extraterritorial force or effect, where the particular contract involved relates to the conveyance or incumbrance of lands situated in another state or jurisdiction. Cochran v. Benton, 126 Ind. 58. Such conveyances or encumbrances are considered as being governed by the situs of the realty, and all questions relating to the validity thereof are to be determined according to that law and not according to the law of the place of the contract or of the domicile of the contracting parties. Jones on Mortgages, sec. 823; 6 Thomp. Corp., sec. 7721; Nathan v. Lee, 43 L. R. A. 824. An action to foreclose a mortgage must be brought in the jurisdiction of the situs of the realty and the action to redeem said realty from the sale of the foreclosure must also be brought in the jurisdiction of the situs realty. Allen v. Allen, 30 P. 213; Wheeler v. Walker, 64 Ala. 560; Miller v. Shotwell, 38 La. Ann. 891. The right of redemption from legal sale exists only by statute. Little v. People, 43 Ill. 188; Conway v. John, 23 P. 170; Gosoont v. Gloe, 76 N.W. 424. The right to redeem from such sale extends only to cases coming within the statute. White v. Bates, 15 S.W. 651; Owen v. Kilpatrick, 96 Ala. 421. The law in force at the time of the sale governs. Moor v. Seaton, 31 Ind. 1; Ross v. Ross, 129 Mass. 243. Where a deed is executed and the parties reside in one State and the land is situate in another, lex situs governs. Minor on Conflict of Laws, p. 37; Manton v. Seiberling, 107 Iowa 534; Story on Conflict of Laws (8 Ed.), sec. 426. The law of the lex situs controls as to the questions relating to the right and title to realty. Richardson v. De Giverville, 107 Mo. 422; Story on Con flict of Laws (8 Ed.), sec. 428, p. 451; Brine v. Ins. Co., 96 U.S. 635; 27 Cyc. 1801. The rights of the parties are merged in the judgment and the same is final when not appealed from. A final judgment means one which can be foreclosed by execution, one that bears interest. R. S. 1909, sec. 2090; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Nast, 209 Mo. 708. A void sale may be ratified by the landowner taking down and receipting for the surplus money. Proctor v. Nance, 220 Mo. 104; Hector v. Mann, 225 Mo. 228. (2) The validity of a mortgage of real estate, and its construction and effect are to be determined by the law of the State where the mortgaged property is situate, although the mortgage itself is executed and the parties reside in another State. Dawson v. Hayden, 67 Ill. 52; Holt v. Knowlton, 86 Me. 456; Griffin v. Griffin, 18 N.J.Eq. 104; Dow v. Railroad, 20 F. 260; Beach on Modern Law of Contracts, sec. 599, p. 720; State v. Clark, 178 Mo. 319; Depas v. Mayo, 11 Mo. 319; Baum v. Birchall, 30 Am. St. 735; Klink v. Prive, 6 Am. St. 268; Ivey v. Lalland, 42 Miss. 444; 2 Parsons on Contracts, 571; Richardson v. DeGiverville, 107 Mo. 422; Keith v. Keith, 97 Mo. 228; Story on Conflict of Laws, secs. 428 and 463; Rhue v. Buck, 124 Mo. 183; Goddard v. Sawyer, 91 Mass. 78; Fessenden v. Taft, 65 N.H. 39; Miller v. Shotwell, 38 La. Ann. 890; Kelly v. Davis, 28 La. Ann. 773; Cochran v. Benton, 126 Ind. 158. (3) The right to redeem is purely statutory. There is no right to redeem lands sold under execution upon judgments either of foreclosure or otherwise in the absence of special statute. 20 Am. & Eng. Ency. Law (1 Ed.), p. 634; Nicholas v. Tingstand, 10 N.D. 172; Smith v. Anders, 21 Ala. 782; Wimfheimer v. Ins. Co., 56 N.J.Eq. 585.

OPINION

LAMM, J.

Equity. Plaintiffs' ancestor, Amanda T. Hughes, sued in the Clark Circuit Court to set aside a judicial sale following the foreclosure of a mortgage on, say, 1300 acres of land in Clark county, Missouri, and to redeem. Cast below, she appealed. Pending appeal she dies, leaving plaintiffs as her only heirs. On suggestion of her death here the cause is revived in their names. They enter their appearance and prosecute this appeal.

In November, 1904, Amanda T. Hughes (with two of the present plaintiffs) executed a note to defendant bank in the rise of $ 8500, due in a year and drawing seven per cent interest, securing it by a mortgage in common form on the land in question (then subject to prior encumbrances) on condition that the conveyance became void if the note were paid, having also a provision for foreclosure on default. Default was made and in 1907 suit was brought by defendant bank in the Clark Circuit Court to foreclose and for judgment on the overdue note. To that suit she entered her voluntary appearance. Such proceedings were had that in June of that year a decree went foreclosing her equity of redemption, adjudging recovery on the note in the sum of $ 9499.08 and awarding execution. Execution issued and a sale was made in the summer of 1907. Defendant Winkleman, being the best and last bidder, the land was knocked down to him at that public vendue and outcry under the sheriff's hammer for $ 10,505, and he presently received a sheriff's deed. Thereafter in December, 1907, the present suit was brought.

The bill narrates the foregoing facts and then alleges that defendant bank and the plaintiff, Amanda T. Hughes, were at all times citizens and residents of Iowa; that the note and mortgage were Iowa contracts and are to be construed under its laws; that under those laws Amanda T. Hughes was entitled to redeem from a sale under a decree foreclosing a mortgage at any...