Lanier v. McIntosh
| Decision Date | 06 November 1893 |
| Citation | 23 S.W. 787,117 Mo. 508 |
| Parties | Lanier v. McIntosh et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. Joseph Cravens, Judge.
Affirmed.
George Hubbert with Benton & Sturgis and A. J. Harbison for appellants.
(1) Even upon the hypothesis that the mortgage by J. D. and Mary Shields to Kunkel had not been satisfied or fully paid, the evidence, clearly tending to prove at least a partial payment, entitled defendants, under the pleadings, to an ascertainment of the balance due, and administration of their rights by suitable directions and rulings. (2) Kunkel had no authority to delegate the power of sale; and the fact that he was in "eye shot" of the place of sale did not make it his. Graham v. King, 50 Mo. 22; St. Louis v Priest, 88 Mo. 612; Brickenkamp v. Rees, 69 Mo 426; Spurlock v. Sproule, 72 Mo. 503. (3) Power of sale depended upon conditions specified in the mortgage chief amongst which was that of non-payment of the note. But the note had been fully paid and surrendered. It is no reply to this suggestion to say that the circumstances were such that Seabourn had the right of subrogation to the mortgage by reason of alleged mistake. For then, if subrogation means assignment, Seabourn was the person to execute the power of sale. Prichett v. Jones, 63 Mo. 195; 4 Kent's Commentaries, [*] p. 147 [11 Ed.], p. 161. (4) If assignment be not meant, then the right was of equitable cognizance only. The conditions of the execution of the power not being present, no sale could be made for any purpose, much less to cut off redemption. McNair v. Picotte, 33 Mo. 57; 2 Jones on Mortgages, sec. 886, 889. (5) A release of mortgage by entry of record, as in this case, is virtually a statutory, recorded, acknowledged, attested reconveyance -- much more than a mere receipt for money; and it has the effect of a release by deed, formally executed and delivered. Anything to the contrary must overlook the purpose and force of our statute. 2 Jones on Mortgages, secs. 974, 985, 989 and 1015; Revised Statutes, 1879, sec. 3313. (6) Such release after condition broken, though debt not paid, leaves it standing unsecured and upon the footing of a simple debt. 2 Jones on Mortgages, sec. 984. (7) Only a new instrument, executed with same as the original formalities, can revive a released mortgage; and if it be by man and wife, both are necessary parties to such new instrument. 2 Jones on Mortgages, secs. 946, 947. (8) The testimony of Kunkel that there was no mistake of fact in the matter of entering satisfaction of record, puts him, and all claiming under him in that regard, beyond the reach of remedy, whether the same be sought by direct or indirect means. 2 Jones on Mortgages, sec. 969; St. Louis v. Priest, 88 Mo. 612; Hendrix v. Wright, 50 Mo. 311; Guy v. DuPrey, 16 Cal. 195. (9) Even in equity, relief against mistake of fact will be awarded only where the mistake might have been avoided by diligence; and this rule applies to bills for cancellation of release of mortgages. 2 Jones on Mortgages, sec. 969. (10) At all events, it is only equity that can administer a remedy for mistake which has brought about a fact otherwise binding at law; whether the remedy sought be through the equitable principle of subrogation or otherwise. Here plaintiff chose his remedy and should stand by it. Sheldon on Subrogation, sec. 4; White v. Rush, 58 Mo. 105; Gamble v. Daugherty, 71 Mo. 599. (11) The legal title, if plaintiff ever had any, is shown to be outstanding by his own act and no equity could avail him in this action. Thompson v. Lyon, 33 Mo. 219.
H. C. Pepper for respondent.
(1) It was competent for the plaintiff to introduce parol evidence to show that the acknowledgment of satisfaction of the mortgage was made through mistake, and that such mistake is always, both at law and in equity, open to explanation. Christy v. Scott, 31 Mo.App. 31, and cases cited. Such mistake is simply "that result of ignorance of the law or fact which has misled a person to commit that which, if he had not been in error, he would not have done." Story's Equity Jurisprudence, sec. 110, note 1. Plaintiff cannot be driven to an action in equity to cancel the entry of satisfaction, and that he may impeach the same by parol evidence under the pleading in ejectment. Joerdens v. Schrimpf, 77 Mo. 383, and cases cited. (2) Shields agreed to, and requested that the land be resold under the power in the mortgage to correct the mistake in the first sale. This, of itself, estopped him from denying the validity of the second mortgagee's deed from Kunkel to Seabourn. Jones on Mortgages [3 Ed.], sec. 1484. (3) If it be claimed that plaintiff is the assignee only of the mortgagee by reason of any irregularity in the execution of the power of sale in the mortgage, and that an absolute estate in the land was not transferred to him, yet, as such assignee, plaintiff is surrogated to the rights of the mortgagee, one of which is the right of possession. Pickett v. Jones, 63 Mo. 198; Jones v. Mack, 53 Mo. 147; Jones on Mortgages [3 Ed.], sec. 1678. (4) If the second sale under the power in the mortgage be invalid on account of any irregularity, and the mortgagee's deed in pursuance thereof did not convey the absolute title in the land, yet, such deed and the subsequent conveyances by deed were sufficient to transfer the legal estate in the land to plaintiff. Jones on Mortgages [3 Ed.], sec. 1902. Plaintiff was, at the time of bringing this suit, the legal owner of the land in controversy, and entitled to the possession of the same, the judgment of the circuit court, therefore, ought to be sustained.
-- The suit is ejectment in the usual form, to recover a parcel of land twenty-two rods and six feet long by fifteen rods and seven feet wide, in McDonald county. The answer admitted the possession of McIntosh as tenant of his codefendant, J. D. Shields, but denied all other allegations. It also set up the following special defense:
The reply admits the execution and delivery of the note and mortgage by J. D. Shields, but denies that he ever paid the note or satisfied the mortgage as charged in the answer.
In support of his title plaintiff offered in evidence, the following deeds: First. Mortgagee's deed from John A. Kunkel to J. C. Seabourn, dated October 29, 1887. This deed purports to convey the land under power of sale contained in the mortgage made by defendant Shields, and described in the answer. Second. Quitclaim deed from J. C. Seabourn to Geo. W. Corum, dated May 2, 1888. Third. Mortgage deed from Geo. W. Corum to plaintiff, L. C. Lanier, to secure note for $ 300 due in ten days with power of sale in case of default, dated April 5, 1889. Fourth. Mortgagee's deed from L. C. Lanier, under power of sale, to Alphonso Howe, dated May 18, 1889. Fifth. Quitclaim deed from Alphonso Howe to plaintiff Lanier. No date given in abstract.
The record of the mortgage from defendant Shields to Kunkel, showed an entry of satisfaction on the margin, dated October 16, 1886, and signed by Kunkel, the mortgagee.
In explanation of that entry of satisfaction Kunkel testified that prior to the entry he had undertaken to sell the property under his mortgage, but misdescribed the land in both, the advertisement and deed. At this sale Seabourn was also the purchaser, paying therefor $ 305, which paid the debt and cost, and $ 17 or $ 18 over, which was paid to shields, as mortgagor, to whom was delivered the note and mortgage, and he then entered satisfaction. That, on learning of the misdescription of the land in the previous sale and deed, at request of the purchaser and Shields, he resold the property merely to correct the mistake. On this sale nothing was paid.
The evidence also tended to show that these purchases at mortgage's sale were made by Seabourn at the request of Shields, his son, Abe, and Gus Corum and Seabourn undertook it for the benefit of defendant Shields. Seabourn gave them an agreement to convey as they should direct upon repaying him. The parties borrowed the money to pay for the land and Seabourn signed the note as security with the understanding that when the amount was paid he would convey as directed. Seabourn had the note to pay but the money was afterwards repaid to him, a part by Abe Shields but most of it by Corum and at the request of Shields, Abe and Corum, he conveyed the land to the latter. The evidence is not very clear from or by whom Seabourn was repaid. The evidence shows further that the second sale made under the Shields mortgage was conducted by an agent, the mortgagee then being sick. Howe was the stepson of Corum, and married the daughter of plaintiff.
There was conflict in the evidence as...
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