Keet v. Baker

• Decision Date: 03 November 1897
• Citation: 42 S.W. 940,141 Mo. 175
• Parties: Keet v. Baker et al., Appellants
• Court: Missouri Supreme Court

42 S.W. 940

141 Mo. 175

Keet v. Baker et al., Appellants

Supreme Court of Missouri, First Division

November 3, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

James Baker for appellants.

(1) By his assumption in the deed to him, J. T. Keet became the mortgagor himself, primarily liable. He could not, under any circumstances, purchase or keep the mortgage alive. An assignment or transfer of it to him would have satisfied it. Devlin on Deeds, sec. 1056; 15 Am. and Eng. Ency. of Law 836, 837; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 85 Mo. 13; Freeman v. Moffitt, 119 Mo. 280; Fitzgerald v. Barker, 70 Mo. 685; McCabe v. Swap, 14 Allen, 188; Atkinson v Stewart, 46 Mo. 510; Carlton v. Jackson, 121 Mass. 592. (2) One for whom property is held in trust, whose equitable duty it is to pay a mortgage, can not keep the mortgage alive by having it assigned to him. Sheldon on Subrog., p. 74; Putnam v. Call, 120 Mass. 454. (3) If the money is advanced by one whose duty it is, by contract or otherwise, to pay the mortgage, it will be a release and not an assignment. Brown v. Lapham, 30 Cush. (Mass.) 551. (4) If the mortgage debt has in substance been paid from the means or estate of the principal debtor, it will be a payment, not an assignment. Sweaney v. Mallory, 62 Mo. 485; Atkinson v. Stewart, 46 Mo. 510; Sheldon on Subrog., pp. 78-84.

Massey & Tatlow for respondent.

(1) We insist that it is the law that even if Josiah T. Keet, now deceased, had lived and had himself had the transaction with the holders of the bond and purchased at the foreclosure sale thereunder, and received a trustee's deed under said purchase, he would have acquired the legal title to this lot as against the appellants in this case. Sheldon on Subrog. [2 Ed.], secs. 28, 53; 24 Am. and Eng. Ency. of Law, 271 Bryson v. Myers, 1 Watts & S. (Pa.) 420; Ayers v. Adams, 82 Ind. 109; Young v. Morgan, 89 Ill. 199; Metzen v. Shaffer, 65 Cal. 81; Johnson v. Zink, 51 N.Y. 333; Stillman v. Stillman, 21 N.J.Eq. 126; Hopkins v. Walley, 81 N.Y. 77; Cleveland v. Southern et al., 25 Wis. 479; Jumel v. Jumel, 9 Paige, 591; Orrick v. Durham, 79 Mo. 179. (2) Baker did not acquire the legal title to the lot in question by virtue of the sheriff's deed, for the reason that the levy made by the sheriff under the execution, upon which the sale was made and under which sale Baker obtained his deed, was made on the eighth day of June, 1894. The Lombard bond, secured by the deed of trust, fell due on the first day of June, 1894, hence the levy of the sheriff under the execution was made after default and condition broken, in the deed of trust. Schanewerk v. Hoberecht, 117 Mo. 22; Thrasher Co. v. Donovan, 120 Mo. 423; Kennedy v. Siemers, 120 Mo. 73; Bates v. Baker, 1 S.W. (Tex.) 256; McArthur v. Oliver, 60 Mich. 606; Drake on Attachments, sec. 623; Russell v. Allen, 10 Paige, 249; Vanderkemp v. Shelton, 11 Paige, 28; Tice v. Annin, 2 Johns. 108; Lovelace v. Webb, 62 Allen, 271.

OPINION

Brace, J.

This is an action in ejectment to recover possession of lot number 8 in Curtis addition to the city of Springfield. The petition is in common form. The answer a general denial. Hatfield and Tracy, who were the owners of the premises, on the twenty-seventh of May, 1889, executed a deed of trust thereon of that date to secure their promissory note for $ 1,650, payable June 4, 1894, to the Lombard Investment Company. Afterward on the twenty-third of February, 1892, the said Hatfield and Tracy conveyed the premises to P. H. Oliver by deed of that date containing the following stipulation: "This deed is made subject to a deed of trust to the Lombard Investment Company, for the sum of $ 1,650, and all interest on the same, recorded in the recorder's office of Greene county, Missouri, in deed of trust record book 26, page 500, which grantee hereby assumes and agrees to pay as part of the consideration herein."

On the twelfth day of April, 1892, the said Oliver, by deed of that date containing the same stipulation, conveyed the premises to Samuel H. Horine. At this date there was standing on the records of the circuit court of Greene county, a judgment in favor of the defendant Baker against the said Horine for $ 100 and costs. Afterward, on the thirty-first of August, 1892, the said Horine, by deed of that date containing the same stipulation as before, conveyed the premises to John C. Keet, and on the twenty-second of December, 1892, the said John C. Keet, by his deed of that date containing the same stipulation as before, conveyed the premises to Josiah T. Keet, who thereafter died, and by his last will admitted to probate in March, 1894, appointed his son, the plaintiff James E. Keet, and his wife, Elizabeth Keet, executors thereof.

In June, 1894, the Lombard Investment Company duly assigned in writing and delivered the deed of trust aforesaid, together with the promissory note evidencing the indebtedness, thereby secured, to the plaintiff for the consideration of $ 1,650.

On the ninth day of July, 1894, the sheriff of Greene county, in pursuance of a sale made on the seventh of July, 1894, under an execution issued upon the judgment aforesaid against Horine, conveyed the premises to the defendant Baker. On the thirty-first of August, 1894, in pursuance of a sale in foreclosure of the deed of trust aforesaid, the trustee conveyed the premises to the plaintiff who, on the sixteenth of March, 1895, instituted this suit. The judgment was for the plaintiff and the defendant appeals.

The only question in the case is, did the legal title of Hatfield and Tracy to the premises pass to the plaintiff by the trustee's deed, executed in pursuance of the sale made in accordance with the terms of their deed of trust? Upon the face of the foregoing statement which comprises the substance of the documentary evidence in the case, it is apparent that it did; but in the course of the trial it...