Lewis v. Schwenn
| Decision Date | 06 December 1886 |
| Parties | Lewis, Administrator, Appellant, v. Schwenn et al |
| Court | Missouri Supreme Court |
E. P Johnson for appellant.
The trial was by the court in this case, the facts were not in dispute, and the court could not have reached its conclusion without determining, as a matter of law, that, on the facts, the appellant was not entitled to recover. Walter v. Ford, 74 Mo. 195; Silvey v. Summer, 61 Mo. 253; Wood v. Williams, 61 Mo. 65; Willi v. Dryden, 52 Mo. 319; Gambs v. Insurance Co., 50 Mo. 44; Waddell v. Williams, 50 Mo. 216. And the deed of trust was insufficient in itself to show authority in the trustee to sell, even if not objected to, as there was no provision in it making any recital by the trustee, evidence of the fact so recited. Bartlett v. O'Donoghue, 72 Mo. 563. And in the absence of such provisions in the deed of trust, such facts must be proved to authorize the trustee to sell, and there was no attempt to introduce such evidence, in this case. Vail v. Jacobs, 62 Mo. 130; Hancock v. Whybark, 66 Mo. 672. Hence, respondents' deeds should have been excluded, or, if admitted, even without objection, no effect given them. Appellant's instruction number one should have been given, for the reason that the recital in the deed of trust from Barrett to Sutton's trustee, the note which it had been executed to secure, was more than fifteen years past due, at the time the trustee attempted to sell under it, and there was no evidence that the note or any part of it remained due, or that any payment had ever been made on it, or that the premises had ever been in the possession of Sutton or the trustee, but, on the contrary, that Engler had held them adversely for more than ten years prior to that time and the note was presumed to have been paid. Cape Girardeau Co. v. Harbison, 58 Mo. 90; Bush v. White, 85 Mo. 339; Zoll v. Carnahan, 83 Mo. 35; Johnson v. Johnson, 81 Mo. 331; Chouteau's Ex'r v. Burlando, 20 Mo. 482. The possession of Engler under his deed and that of his tenant or vendee was notice to every one of his claim. Black v. Long, 60 Mo. 181; Roberts v. Moseley, 64 Mo. 507. In addition to the recital in the deed of trust being notice to all claiming under it, that the note was presumed to have been paid, recitals in a deed, or even in the acknowledgment are notice to all claiming title under it. Major v. Buckley, 51 Mo. 227; Muldrow v. Robinson, 58 Mo. 331; Mason v. Black, 87 Mo. 329. Besides, as respondents obtained possession, from their father, of these premises, who held them under Engler, there can be no reasonable doubt that they had actual notice of Engler's claim, so that they can make no pretense of being innocent purchasers, as was held by the circuit court in a written opinion. But suppose they were innocent purchasers in fact, with nothing to put them on their guard. A sale under a deed of trust after payment is void. Baker v. Halligan, 75 Mo. 435. In such case an innocent purchaser acquires no title, the deed of trust being functus officio. Redmond v. Packenham, 66 Ill. 434. The same is true of a purchaser underexecution when the judgment had been paid. McClure v. Logan, 59 Mo. 234; Durfee v. Moran, 57 Mo. 374; Durette v. Briggs, 47 Mo. 356. In addition a purchaser at a sale made under a power, buys at his peril (Haley v. Bagley, 37 Mo. 363), as, if the sale be made before the time prescribed (Eitelgeorge v. The Mutual H. B. Association, 69 Mo. 52), or without notice, or an insufficient notice (German Bank v. Stumpf, 73 Mo. 311; Ladd v. Shippie, 57 Mo. 523; Long v. Long, 79 Mo. 644), it is void. Or if a deed be fraudulently obtained, no title passes even to an innocent purchaser. Taylor v. Davis, 72 Mo. 291. And, as between mortgages, the one for purchase money has priority between innocent purchasers. Turk v. Funk, 68 Mo. 18; Linville v. Savage, 58 Mo. 248. Respondents cannot be protected as innocent purchasers. Goodfellow v. Stillwell, 73 Mo. 17; Merchant v. Wood, 27 Minn. 396; Digby v. Jones, 67 Mo. 104. Appellant's second instruction should have been given. Martin v. Jones, 72 Mo. 23. Appellant's third instruction should have been given. Lockwood v. Railroad, 65 Mo. 236; Ash v. Holden, 36 Mo. 166.
J. W. McElhinney for respondents.
The plaintiff, as public administrator, having in charge the estate of August Engler, brought this suit of ejectment to recover a small parcel of land in St. Louis county. The cause was tried before the court, without a jury, and resulted in a judgment for defendants, which was affirmed in the court of appeals.
It is agreed that J. Richard Barrett had a good title to the premises on the twenty-fifth of February, 1862. The plaintiff put in evidence a sheriff's deed, dated March 21, 1867, and recorded in the following June, conveying to said Engler all the right and title of Barrett in and to the premises in dispute. The defendants read in evidence a deed of trust made by Barrett to Kalb as trustee, dated February 25, 1862, and recorded the next day, to secure a note of one thousand dollars, signed by Barrett and payable to Sutton. The deed recites that the note was past due, and states that Sutton had extended the time of payment to January 1, 1863. The deed of trust contains the usual power of sale; also a deed by the trustee to B. N. Steinberger, dated August 7, 1878, and recorded in December, 1878. This deed was accompanied by proof that the property had been advertised for sale for the length of time and at the place specified in the deed of trust; also a deed from Steinberger to defendant, dated July 6, 1879.
The other evidence is not preserved, but the bill of exceptions states that plaintiff gave evidence tending to prove that, in the spring or early summer of 1867, August Engler took possession of the premises, claiming to own the same, and retained possession of them under such claim of title until the year 1875, or 1876, and then leased the same to Jacob Schwenn, father of the defendants; that Jacob Schwenn remained in the possession, as tenant of Engler, until July, 1879, when he gave up possession to defendants. The bill of exceptions also states that defendants offered evidence tending to prove that, in 1875, or 1876, Jacob Schwenn purchased the property from Engler by a verbal contract, and took possession under the contract, but never paid the purchase money, and finally gave up possession to the defendants.
1. Plaintiff objected to the deed of trust and trustee's deed, when offered in evidence, on the ground that the debt had been paid, and on the ground that the deed of trust showed that the debt was more than ten years past due at the date of the trustee's sale, from which fact the law presumes the debt had been paid, and hence the sale was void and passed no title. There is no evidence that the debt, in point of fact, had been paid, and we only have to deal with the alleged presumption. This objection to the deeds as evidence was also renewed by way of an instruction. If the presumption of payment from lapse of time has any application to this case, still the objection to the deeds as evidence was properly overruled, for such a presumption is rebuttable. It may be overcome by other facts and circumstances. Jackson v. Slater, 5 Wend. 296. The court could not dictate the order in which defendants should put in their evidence as to this question of fact. Again, the question was one of fact and law, and could not be determined until the defendants' evidence was all before the court. The instruction is based upon the admission of a common source of title in Barrett, and the facts disclosed on the face of the deeds put in evidence. It does not state, hypothetically, that Engler was ever, at any time, by himself, or tenant, in the possession of the premises. In Jackson v. Pierce, 10 Johns. 413, the fact that the mortgaged premises were uncultivated for a part of the time, was considered a circumstance to rebut the presumption of payment. In Chouteau v. Burlando, 20 Mo. 482, the court said: "There was no possession by the mortgagor, in the sense that is required in order to raise the presumption of satisfaction of the debts." That case, the case of Cape...
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