Long v. Long

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Sherwood
• Citation: 19 S.W. 537,111 Mo. 12
• Decision Date: 23 May 1892
• Parties: LONG v. LONG.

19 S.W. 537 111 Mo. 12 LONG
v.
LONG. Supreme Court of Missouri, Division No. 1. May 23, 1892.

SALE UNDER JUNIOR MORTGAGE — SUBROGATION — RIGHTS OF JUNIOR MORTGAGEE.

1. A senior mortgagee purchased the mortgaged premises on foreclosure, and afterwards quitclaimed to plaintiff, a junior mortgagee, who paid in full the debt secured by the senior mortgage. Afterwards, it was adjudged that no title passed by the sale. Plaintiff then sold under his own mortgage, and bid in the property, and took a deed which passed to him the legal title, and entered into possession. Held, where plaintiff, while retaining such title and possession, sought to foreclose the mortgagor's equity of redemption under the senior mortgage, that he was not entitled to be subrogated to the rights of the holder of that mortgage.

2. If the mortgagor should sue to redeem, plaintiff would then be entitled to be reimbursed for the amount which he paid to satisfy the senior mortgage.

Appeal from circuit court, Knox county; BEN. E. TURNER, Judge.

Action by David Long against Joseph Long. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

A cause entitled as is the present one, and between the same parties litigant, has been before us on two former occasions, and will be found reported in 79 Mo. 644, and in 96 Mo. 180, 8 S. W. Rep. 766. In the former case, the plaintiff, claiming under what is known as the "Bull" or first deed of trust, though successful in an action of ejectment in the lower court, was defeated in this court, and his suit ordered to be dismissed by the lower court on the ground that no default had occurred in the payment of anything due under that deed of trust, and that, in consequence thereof, no title passed by the sale. In the latter case, where the action was also ejectment, and based upon a sale of the same land, made under the "Howerton" or second deed of trust, the plaintiff was successful both in the lower and in this court. In the present proceeding, begun in December, 1887, the same plaintiff seeks to foreclose the equity of redemption of the defendant in the land in controversy, claiming the right to be subrogated to the rights of the holder of the notes and first deed of trust. The pleadings in this cause are excessively voluminous, covering some 27

[19 S.W. 538]

large pages of closely-printed matter. It is unnecessary to incumber this record with them. It is thought that the substantial issues raised by the pleadings can be sufficiently presented while discussing those issues, without setting them forth in detail.

O. D. Jones, for appellant.

Blair & Marchand, for respondent, cited, as to plaintiff's right to subrogation: Heath v. Daggett, 21 Mo. 69; Magwire v. Marks, 28 Mo. 193, 197; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152, 163; Jackson v. Magruder, 51 Mo. 55; Honaker v. Shough, 55 Mo. 472, and cases cited; Jones v. Mack, 53 Mo. 147; Davis v. Holmes, 55 Mo. 349; Tatum v. Holliday, 59 Mo. 422; Long v. Long, 79 Mo. 644, 657; McLaughlin's Adm'r v. Daniel, 8 Dana, 182; Bentley v. Long, 1 Strob. Eq. 43; Howard v. North, 5 Tex. 315; Peltz v. Clarke, 5 Pet. 482; Atkinson v. Stewart, 46 Mo. 510, 513; Norton v. Highleyman, 88 Mo. 621; Reyburn v....