Ivy v. Yancey

• Decision Date: 02 July 1895
• Citation: 31 S.W. 937,129 Mo. 501
• Parties: IVY et al. v. YANCEY et al.
• Court: Missouri Supreme Court

31 S.W. 937

129 Mo. 501

IVY et al. v. YANCEY et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1895.

CHANGE OF VENUE — WAIVER OF OBJECTION — ADVERSE POSSESSION — GRANTOR IN TRUST DEED — JUDGMENT IN EJECTMENT — HARMLESS ERROR — BILL OF EXCEPTIONS — SHERIFF'S DEED — PRESUMPTION OF AUTHORITY.

1. A defendant who, after a change of venue, files his answer in the new venue cannot complain of the change.

2. Where an application for a change of venue is made in the name of all the defendants, the affidavit may be made by one defendant alone, and it is immaterial that the suit is afterwards dismissed as to him.

3. The possession of the grantor in a trust deed is not adverse to the trustee, unless the grantor specifically repudiate the deed.

4. Where, after land is sold under a trust deed, the grantor remains in possession, his possession is not adverse to the purchaser's title unless he specifically repudiate the trust deed.

5. A judgment will not be reversed merely because certified copies of deeds were received in evidence when the originals were in the control of the party who offered the copies.

6. Recitals in a deed not copied in the bill of exceptions will not be considered on appeal.

7. It will be presumed that a sheriff in executing a deed acted within his official powers.

8. Where a grantee on the same day he receives his deed executes a trust deed of the land for the benefit of the grantor, it will be presumed that he executed the trust deed after the deed to him was delivered.

9. Where one who executes a trust deed to land to which he has no title afterwards acquires title, such title inures to the benefit of the grantee in the trust deed.

10. Where a trust deed fails to provide that in case of foreclosure the grantor should be allowed for improvements made by him, such improvements inure to the benefit of the mortgagee or purchaser at foreclosure sale.

Appeal from circuit court, Iron county; James D. Fox, Judge.

Action of ejectment by P. C. Ivy and another against Joel Yancey and others. Judgment was rendered for plaintiffs, and defendant Yancey appeals. Affirmed.

Settle & Bugg and C. D. Yancey, for appellant. John H. Raney and M. R. Smith, for respondents.

SHERWOOD, J.

Ejectment for land in Wayne county, begun on December 22, 1890. Change of venue to Iron county, on application of defendants. On its arrival there a trial occurred, resulting in a judgment for plaintiffs, and defendant Joel Yancey appealed to this court.

1. The application for the change of venue having been made on notice by all of the defendants, and on application by all of the defendants, and sworn to by Wilhite, one of their number, on behalf of all of them, the application was a valid one, and the order of the circuit court of Wayne county based thereon was a valid order, and transferred the case to the Iron county circuit court. Besides, after the transcript reached the venue to which it had been ordered, defendants Mattie Yancey and Jennie Sullivan appeared, and filed their separate amended answer to the petition. Then Joel Yancey did the like. Then Joel Yancey appeared again, and, with his codefendant Wilhite, filed another separate amended answer. By these occurrences, the defendants thus appearing submitted themselves to the jurisdiction of the court, and cannot now question such jurisdiction. Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29. And the subsequent dismissal by plaintiffs of the suit as to Wilhite did not defeat the jurisdiction previously acquired as to the other defendants. The conveyances introduced in evidence by plaintiffs are as follow: Certified copy of a warranty deed: "Lee M. Pettit and wife to Joel Yancey. Made January 31, 1870. Recorded February 26, 1870." Certified copy of deed of trust: "Joel Yancey and wife to Geo. W. Creath, trustee, and A. A. Duncan, curator of Willie N. Steele, minor, beneficiary. Made July 24, 1873. Recorded August 13, 1873." Original trustee's deed: "Wm. Warmick, sheriff, acting as trustee to Wm. T. Leeper. Made June 2, 1883. Recorded June 2, 1883." Certified copy of warranty deed: "Wm. T. Leeper and wife to Lucinda Yancey. Made June 13, 1883. Recorded March 31, 1884." Original deed of trust: "Lucinda Yancey and husband to George T. Lee, trustee, and William T. Leeper, beneficiary. Made June 13, 1883. Recorded February 18, 1884." Original trustee's deed: "George T. Lee, trustee, to P. C. Ivy and C. A. Bennett. Made Sept. 6, 1890. Recorded Sept. 6, 1890."

2. On the trial Joel Yancey admitted that he went into possession of the land in suit a short time after he bought the land of Pettit; that he obtained the title to the land from Pettit, and that he still held possession under that title. The note which he gave in 1873 he secured by a deed of trust on that land. That note fell due in 1875, and on the 2d of June, 1883, the note and interest being unpaid, a sale occurred under the deed of trust, and Leeper became the purchaser, and received on the same day a deed for the land, which sale and deed swept away whatever title Joel Yancey had in and to that land, and transferred it to Leeper. And, while Yancey remained in possession under the trustee, he did not hold adversely to the trustee before the sale, and after the sale he will be presumed to hold in subordination to the title of the purchaser; and consequently the statute of limitations did not run in favor of defendant Yancey, and could not have done so, unless he had by his acts and declarations repudiated the deed of trust, and thus converted his subordinate...