Johnson v. Houston

• Citation: 47 Mo. 227
• Parties: H. P. JOHNSON et al., Defendants in Error, v. SAMUEL HOUSTON et al., Plaintiffs in Error.
• Decision Date: 31 January 1871
• Court: United States State Supreme Court of Missouri

47 Mo. 227

H. P. JOHNSON et al., Defendants in Error,

v.SAMUEL HOUSTON et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

F. P. Wright, for plaintiffs in error.

I. Plaintiffs could only recover on their legal title, and they had none when they instituted their suit, nor have they any now. (Hill v. Draper, 10 Barb. 454; Gurno v. Janis' Adm'r, 6 Mo. 330.)

II. An outstanding title in a mortgagee is a good defense to an action of ejectment, and the same rule applies as to deeds of trust. (Meyers v. Campbell et al., 12 Mo. 603; Norcum v. D'Oench et al., 17 Mo. 98; 2 Greenl. Ev., § 304; Welch v. McKay, 10 Mo. 229; Sutton v. March, 38 Mo. 120; 9 Cow 86; Adams' Eject. 32; Covert v. Irvin, 3 Serg. & R. 283.) The trustee held the legal title for the use of the cestui trust. A payment to him would be good, and upon full payment he is bound, under the statute, to enter satisfaction on the record. He had control of the remedies. He could have brought ejectment if any one had been in possession, and applied the rents and profits in payment. (Thomas v. Wright, 9 Serg. & R. 90.) Finding the premises vacant, he had the right, as he did, to take possession and place Houston under him. Of course, he must account for the rents and profits, and apply the same toward extinguishing the debt, and, being legally in possession, neither he nor his tenant Houston can be dispossessed by ejectment. (Phyfe v. Riley, 15 Wend. 248.)

III. The defendant, George M. Pemberton, if he had not a legal, he at least had an equitable right to the possession until the rents and profits paid the debt. The defense of an equitable mortgage can be made to an ejectment suit under our statute. The court, in Chase v. Peck, 21 N. Y. 581, say that since the blending of legal and equitable remedies, the defendant can defeat the cestui on equitable principles; and our court has also decided that an equitable defense can be made. (Hayden v. Stewart, 27 Mo. 286; Thurman v. Andrew, 30 Barb. 621.)

IV. Pemberton's title was a present, subsisting, and operative active title, such as he could have recovered upon had he resorted to an action. (23 Ill. 72; 4 Gilm. 159; 18 Ala. 475; Chase v. Peck, supra.)

Hicks & Phillips, for defendants in error.

I. In the action of ejectment the right of possession must be determined according to the status of the case at the time of the institution of the suit, saving to the defendant the privilege of showing title acquired since that time. (22 Cal. 573.) ( a) And if the plaintiff shows a better right to the possession than the defendant, at the time of the entry of the defendant, the defendants will not be permitted to overcome the presumption of title in plaintiff by showing title in a stranger. (Carleton v. Townsend, 28 Cal. 219.) ( b) At the time of the institution of the suit at bar, the plaintiff held a legal title in fee to the lands in controversy from Pemberton, and showed a prior possession thereof. The defendant Houston, after the date and putting to record of plaintiff's deed, and after plaintiff's said possession, received a deed in fee from said Pemberton, and entered upon the premises under and by virtue of the deed from Pemberton, and was, therefore, an intruder and trespasser upon the rights of plaintiff; and, as such, he was estopped from setting up an outstanding title in the trustee or any other stranger. (4 Cal. 279; 3 Wend. 149-54; 10 Johns. 223; 10 Iowa, 51; 4 Dana, Ky., 455, 464; 7 Cow. 636.) ( c) The defendant Houston having entered under deed from the same vendor under whom plaintiffs claim, is likewise estopped from setting up any title adverse to that of the common grantor. (7 Cal. 416; 39 Mo. 433; 33 Mo. 249; 24 Mo. 545.) ( d) Pemberton is admitted as a co-defendant on the distinct ground that Houston holds under him, and of course could interpose no defense that his grantee (Houston) could not make. And not having entered and taken possession under the deed of trust, neither of them can invoke it as outstanding title. The legal title to the premises was vested in the mortgagee, pro forma, after forfeiture, for the sole purpose of securing his debt; and he can not part with or assign the estate without likewise parting with the debt. (Walcot et al. v. McKinney's Heirs, 10 Mo. 230, 231.)

II. Should the court, notwithstanding, hold that it was competent for defendant below to set up an outstanding title, we submit that the deed as to Mrs. Johnson could not be foreclosed as a mortgage, because the notes which are its consideration are void.

BLISS, Judge, delivered the opinion of the court.

In 1860 defendant Pemberton conveyed to plaintiff, Harriet P. Johnson, a tract of land in Pettis county for $440, for which she gave her notes, and, to secure them, executed with her husband a deed of trust upon the same land, and forthwith entered upon it and made improvements. In 1861 the husband entered the army, and Mrs. Johnson some time afterward left the premises. The notes not being paid, defendant Pemberton executed a deed purporting to convey the premises to defendant Houston, who went into possession, and this suit was brought against him for possession. After its commencement, Houston conveys back to Pemberton, who comes into court, and, at his own motion, is made a defendant. Upon the trial the court ruled substantially that defendants were entitled to the possession by virtue of the deed of trust, and judgment was rendered against the plaintiffs. The District Court reversed this judgment, and defendants bring up the case.

The plaintiffs have no equity, but rely solely upon the legal title of Mrs. Johnson. That she once held the title is clear. But in a mortgage, or a deed of trust in the nature of a mortgage, the legal title, after condition broken, passes to the mortgagee or trustee. Such is the general law, though modified in New York by the statute forbidding ejectment by the mortgagee, and such is the law of Missouri. (Walcott v. McKinney, 10 Mo. 229; Meyer v. Campbell, 12 Mo. 603; Sutton v. Mason, 38 Mo. 120; Hubbell v. Vaughan, 42 Mo. 138.) These cases arose under common mortgages, but a deed of trust is also an absolute conveyance upon its face, with the same condition of avoidance if the debt is paid; and the addition of a power to sell without judicial proceedings to foreclose certainly can not avoid the legal effect of the grant. The plaintiffs abandoned possession, and the trustee, after the notes fell due, had the right to enter, and, without a sale or foreclosure, he could maintain his possession for the use of the beneficiary, not only against all outsiders, but against the plaintiffs themselves until they had fulfilled the conditions of their trust...