Long v. Long

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

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 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. Mitchell, (Mo.) 16 S. W. Rep. 592; Wilcoxon v. Osborn, 77 Mo. 632; Bonner v. Lessley, 61 Miss. 393; Russell v. Whitely, 59 Mo. 196; McHany v. Schenk, 88 Ill. 357.

SHERWOOD, C. J., (after stating the facts.)

The controlling questions in this cause are two, and these: If there are two deeds of trust on the same piece of land, executed by the same debtor to different parties on different dates, and a sale occurs under the first deed of trust, and an agent of the holder of the first deed and notes bids in the property for the amount of the debt, paying no money on his bid, and afterwards quitclaims to the holder of the second debt and deed, who pays in installments the full amount of such debt to such agent, who pays the same over to his principal, and such purchase is made by the junior lienor in order to protect his lien, and it afterwards turns out that such sale under the first deed of trust is defective, by reason whereof no title passed thereby, can the purchaser from the agent be subrogated to the rights of the holder of the first incumbrance, and be entitled to foreclose that deed against the common debtor? Second. If, after such purchase by the junior lienor, and after taking possession by virtue of legal proceedings, he proceeds to sell under his own incumbrance, bids in the property, and receives a deed which passes to him the legal title, and such sale occurs pending former litigation between the purchaser, who now seeks subrogation, and the common debtor, is the purchaser under the second deed entitled to the subrogation he seeks, while he still retains the legal title and possession acquired under the second deed of trust, and yet desires to foreclose only as to the first deed of trust? The court below took the view that the purchaser was entitled as indicated in the second question, and struck out a portion of the defendant's answer, which interposed the second deed, sale, and possession taken thereunder as a bar to subrogation and foreclosure under the first debt and deed, and rendered a decree accordingly, from which the defendant appeals.

1. The plaintiff in this cause, as shown by...