Lemmon v. Lincoln

• Decision Date: 07 November 1895
• Citation: 32 S.W. 662,130 Mo. 335
• Parties: LEMMON v. LINCOLN et al.
• Court: Missouri Supreme Court

32 S.W. 662

130 Mo. 335

LEMMON v. LINCOLN et al.

Supreme Court of Missouri, Division No. 1.

November 7, 1895.

SUPREME COURT — JURISDICTION.

An action to effect the reinstatement of mortgage liens which have been released of record is not within Const. 1875, art. 6, § 12, conferring appellate jurisdiction on the supreme court in actions involving the title to real estate.

Appeal from circuit court, Vernon county; James H. Lay, Special Judge.

Action by W. F. Lemmon against R. L. Lincoln and others to effect the reinstatement of certain mortgage liens. Defendants had judgment, and plaintiff appeals. Transferred to Kansas City court of appeals.

M. T. January, for appellant. Burton & Wight and O. H. Hoss, for respondents.

BARCLAY, J.

This is a suit by which plaintiff, Mr. Lemmon, seeks to be subrogated to the rights of mortgagees in certain mortgages which have been released of record. The principal defendant, Mr. McGowan, claims the land on which the mortgages rested, but he claims it free of any such incumbrance or lien as plaintiff seeks to impose by this action. The pleadings need scarcely be more specially mentioned. The trial court gave judgment for defendants. Plaintiff appealed in the ordinary manner.

D. C. Lincoln owned the land in his lifetime, and put upon it two mortgages (or deeds of trust of that nature); one for $600, in 1882, and the second for $100, in 1884. He died in 1888, leaving these incumbrances unpaid. His son R. L. Lincoln was appointed administrator of the estate. He duly qualified as such. He purchased the interest of his mother and of his brothers and sisters in the estate of his father. Then he applied to plaintiff for a loan sufficient to discharge the said mortgages, which had then become due. He also made affidavit that all the debts of the estate of his father had been paid, and so represented the fact to plaintiff, who thereupon loaned him $950, taking a mortgage on the same realty to secure his personal note for that amount. The proceeds of the loan were applied to discharge the two mortgages of Mr. Lincoln, deceased, as well as taxes and expenses. The balance of the loan was appropriated to his own use by the borrower, R. L. Lincoln. The paid mortgages were released of record by the holders of the notes secured thereby. The last loan was made in 1888, before the expiration of one year from the death of the elder Lincoln. Afterwards, in proper time, claims were probated against his estate to the amount of some $300, and the original administrator absconded. An administrator de bonis non was appointed in his stead. Owing to a want of other sufficient assets, the land in question was put up for sale in the course of administration to meet the probated demands of the estate. Two sales of this sort occurred, the first of which was disapproved by the probate court; the second, July 6, 1891, resulted in a purchase of the land by the chief defendant, McGowan, who claims title on that account, the court having let that sale stand. As default was made by the younger Lincoln on his mortgage given to plaintiff, the latter foreclosed, and by a sale, February 3, 1890, under the terms of the deed, became the purchaser of the property. He took possession of the land at once, and was in possession when McGowan purchased at the...