Hurt v. Kelly

• Decision Date: 31 January 1869
• Citation: 43 Mo. 238
• Parties: OSSEMUS HURT, Defendant in Error, v. WILLIAM T. KELLY, Plaintiff in Error.
• Court: Missouri Supreme Court

43 Mo. 238

OSSEMUS HURT, Defendant in Error,

v.WILLIAM T. KELLY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

Ewing & Smith, Kelly, and Adams, for plaintiff in error.

Sections 23 and 24 of the act touching schools (R. C. 1855, p. 1427) provide for the giving of notice to the defendant before new security can be required. Section 30 of the same act should be construed with them. This is the law under which the County Court, and subsequently the Circuit Court, undertook to act, and the thirtieth section was carried out without regard to the twenty-third and twenty-fourth. In other words, the County Court render a judgment of foreclosure of mortgage (in effect) without notice to the mortgagor. All of this statute must be taken together, and not one isolated section by itself. The notice and proceeding required under sections 23 and 24 must necessarily be had before the court can proceed under section 30. The Legislature could not have intended to divest title in this manner without notice to the mortgagor. The Legislature has not the power to enact any such law. As to the necessity of notice, vide Abbott v. Lindenbower, 42 Mo. 162; Dubois, Adm'r, v. Walsh, 42 Mo. 272; City of Boonville v. Ormrod, 26 Mo. 193; Corliss v. Corliss, 8 Verm. 387-9; 15 Wend. 374; Ang. Highw. § 122; 11 Mass. 507; 14 id. 222; 1 Aik., Verm., 168; Chamberlain v. Farris, 1 Mo. 17; Overstreet v. Shannon, 1 Mo. 529; Sallee v. Hays, 3 Mo. 116; Webb v. Garner, 4 Mo. 10; Smith v. Ross, 7 Mo. 463; Anderson v. Brown, 9 Mo. 638; McLaurine v. Monroe, 30 Mo. 462; Pomroy v. Betts, 31 Mo. 419; Covenant Mut. Ins. Co. v. Clover, 36 Mo. 392.

John F. Ryland, with John F. Phillips, for defendant in error.

I. If the law in question provides, and the mortgage itself provides, that the mortgage may be enforced after forfeiture, merely by the County Court, without any mesne process, issuing an order to the sheriff in the nature of a fieri facias, what right has a mortgagor to complain that his property is sold under such statute and mortgage deed, summarily and without suit? He cannot be heard to complain of the operation of a law and his contract under it, after he has enjoyed all the benefits of the law and contract.

II. That the right of a citizen to notice of a judicial proceeding against him is paramount, and that, as a rule, a judgment without notice is void, are legal truisms not denied. But these general principles have nothing to do with the case at bar. For it is equally as true, and as much law, that, while the citizen has primarily this right of notice, he, as a free man and free agent, may contract away such right. It is done in every day's commercial transactions, in the giving of mortgages with power of sale without any prior notice before sale. Mortgages under our school law are enforced after the fashion of debts under the statute merchant, statute staple, and recognizances in nature of statute staple. ( Vide 2 Saund. 69 b, c, d, note 3; Stat. 11th Edw. p. 1, enforced and amended by Stat. 13th Edw. p. 1; Stat. 3, de mercatoribus. See 1 Eng. Stat. 35.) On failure of debtor to pay on the day assigned, execution could be awarded under those statutes without any mesne process to summons him, or any proof of the debt. The cognizor, by executing the bond (just as the mortgagor here has done), was held to have waived the right of notice. Where the practice authorizes it, a judgment is good without notice. (1 Murphy, N. C., 187; 13 Pick. 53-9.)

III. The seventeenth section of the school act has exclusive reference to the manner of increasing the security on bonds and mortgages: 1st, by requiring additional security; 2d, by requiring payment of part of principal and interest. And the eighteenth section, when it speaks of a ten days' notice being required, refers solely to the increasing of the security by giving “such additional security,” or paying a “part of the principal and interest.” The context and construction of the two clauses clearly show this.

IV. The County Court of Saline county, in issuing the order in question without previous citation or notice, acted in accordance with established custom in such cases, the cotemporaneous construction of the bar, and the practice for more than twenty years. A decision of reversal by this court would render thousands of deeds void, and cause incalculable mischief by unsettling and uprooting titles to vast quantities of land (acquired just as the defendant in error has) on which bona fide purchasers for a valuable consideration have reposed for years. It would take the money of Hurt to replace the school fund borrowed and enjoyed by Kelly for twelve years, and leave Hurt entirely remediless. Without the most cogent reasons the courts never disturb such practice and titles acquired thereunder. (Sloan v. Forse, 11 Mo. 126; McKeen v. De Lancy's Lessees, 5 Cranch, 22, 33.)

BLISS, Judge, delivered the opinion of the court.

In 1849 defendant borrowed $500, school money, of the County Court of Saline county, and secured it by mortgage, under the provisions of the school act. In 1864, by neglecting to pay the interest, the debt had accumulated to over $1,000; and the County Court, without notice to defendant, ordered the sheriff to sell the land, according to the provisions of the mortgage. The plaintiff purchased the land at the sheriff's sale, and brings an action for possession against defendant.

At the trial the defendant objected to plaintiff's evidence, on the sole ground that the County Court made the order, and the sheriff proceeded to advertise and sell the premises, without serving an order upon him or giving him notice of their proceedings. No other irregularity is set up. The Circuit Court of Saline county gave judgment for the plaintiff, from which defendant appealed to the District Court, which affirmed the judgment, and thence the case is brought by error to this court.

The school act of 1839, under which the loan was made and the mortgage given, in regard to the character of the mortgage and mode of enforcing collections, was similar to the present law. Article II, section 16, of the act provided that the bond given for the money should be recited, and that it should “contain a condition that if default shall be made in the payment of principal or interest, or any part thereof, at the times when they shall severally become due and payable, according to the tenor and effect of the bond recited, the sheriff of the county may, without any suit on the mortgage, proceed and sell the mortgaged premises, or any part thereof, to satisfy the principal and interest, and to make an...