Hunter v. Henry

• Decision Date: 08 January 1916
• Docket Number: No. 1620.,1620.
• Parties: HUNTER v. HENRY.
• Court: Missouri Court of Appeals

181 S.W. 597

HUNTER v. HENRY.

No. 1620.

Springfield Court of Appeals. Missouri.

January 8, 1916.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by Lee Hunter against Dennis C. Henry. Judgment for defendant, and plaintiff appeals. Affirmed.

Riley & Riley, of New Madrid, for appellant. Thomas Gallivan, of New Madrid, for respondent.

ROBERTSON, P. J.

One Sherwood, being the owner of a tract of farming land in New Madrid county, executed a deed of trust thereon February 23, 1912, to secure his note due February 1, 1913. This deed of trust contained no provision for entry by beneficiary or trustee in case of default in payment of the debt described therein, but without this the mortgagee had such right upon default. In re Life Association of America, 96 Mo. 632, 637, 10 S. W. 69.

Sherwood in 1912 leased a portion of this land to the defendant for one year at $280, the term beginning January 1, 1913, and ending December 31st of the same year. At or after the time the lease was made the defendant executed his note to Sherwood for the rent, and Sherwood thereafter sold the note to a bank. It is not shown when this note was sold, but we assume soon after its execution. The defendant paid the note to the bank, except $120, which Sherwood caused to be deducted on account of some of the land becoming unfit for cultivation. After due notice a foreclosure sale by the defendant as trustee was had under the deed of trust on September 6, 1913, and one Phillips became the purchaser, and a deed was made to him. The plaintiff bought the land from Phillips, and brought this suit February 2, 1914, alleging the facts above stated, and also:

"That defendant went into the possession of said premises under said lease, and used and occupied the same during the term of his lease therefor, and became liable for the payment of said rent at the time fixed in said lease."

Judgment is then asked for the amount of rent which plaintiff alleges defendant agreed to pay. The case was tried without a jury and at the close of plaintiff's testimony the court, at the request of defendant, entered judgment in his favor, and the plaintiff has appealed.

Just when the note for the rent was given by defendant is not shown, nor is it disclosed when the lease required the rent to be paid. Neither the lease nor the note was offered in evidence. Sherwood was the only witness, and at one place the record shows he testified that he thought the rent was to be paid January 1, 1914, but later he says that was the date of the maturity of the note. It is conceded that defendant did give his note for the rent, that Sherwood sold the note to the bank, and that defendant paid it before foreclosure proceedings were commenced by the mortgagee.

Something is stated in plaintiff's brief about a note not constituting payment, unless the "creditor expressly agrees to take it as payment and to run the risk of it being paid." After the creditor has negotiated the note, he has accepted it as payment of the debt it evidences.

It has been the holding in this state for over a half century that a real estate mortgage or deed of trust is a mere security for the debt therein described, and that until the mortgagor defaults, and the mortgagee either forecloses or takes possession, the mortgagor may sell or lease the premises and collect the rents and profits. Pence v. Gabbert's Administrator, 70 Mo. App. 201, 206. In that opinion, in the cases there cited, and in Dickerson v. Bridges, 147 Mo. 235, 243, 245, 48 S. W. 825, it is held that the common-law rule concerning the vesting of the title in the mortgagee upon the delivery of the mortgage does not prevail in this state.

"The general rule is that, until default, the mortgagor is entitled to the possession of the mortgaged real property. So long as the mortgagee refrains from taking possession, he has no right to the rents and profits received by the mortgagor. 2 Jones on Mort. § 1120. The mortgagor cannot be made to account for the rents for the time past." In re Life Association of America, 96 Mo. 632, 636, 10 S. W. 69, 70; St. Louis National Bank v. Field, 156 Mo. 306, 311, 56 S. W. 1095. This, however, does not of itself give the mortgagor the right to lease the mortgaged...