Long v. Long

• Decision Date: 17 July 1897
• Citation: 44 S.W. 341,141 Mo. 352
• Court: Missouri Supreme Court
• Parties: LONG v. LONG.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 341

141 Mo. 352

LONG v. LONG.¹

Supreme Court of Missouri.

July 17, 1897.

MORTGAGES — FORECLOSURE — SUBROGATION — LIMITATIONS — PROMISSORY NOTES — JUDGMENT — CONCLUSIVENESS — USURY — CONFLICT OF LAWS — JURY — APPEAL — CHANGE OF THEORY.

1. Where one has an adequate remedy at law to enforce the collection of notes, and a right to relief in equity by foreclosure of the security for the same notes, a court of equity cannot deprive him of his right to elect which course he shall pursue.

2. A second mortgagee in possession under a judgment of ejectment based on a purchase by him at foreclosure sale acquired the title of the purchaser at an irregular sale under a prior deed of trust, and also the interest of the creditor. Held that, as holder of the legal title under the first deed of trust, he could not proceed in equity to enforce the debt secured thereby, and at the same time claim that the entire equity of redemption was extinguished by his purchase under the second deed of trust.

3. Parties are bound on appeal by the positions they have taken in the trial court.

4. Though the debt be barred by limitations, the deed of trust securing it may be available to the creditor by a foreclosure suit.

5. Where a suit was commenced on a debt before the statutes of limitations had run, and after the statute had run, an amended petition was filed in accordance with a ruling of the appellate court, which included another debt, the amendment did not make the statute a bar.

6. An indorsement in blank by the payees of notes, and their possession by plaintiff, make a prima facie case of his title thereto.

7. A beneficiary under a second trust deed, who purchases the creditor's interest in a first trust deed, and also the interest of a purchaser by an invalid sale thereunder, is subrogated to all the rights and remedies of the creditor.

8. Where a party, who has established his title to the debt, and his right to enforce the security on which he sues, incidentally asks to be subrogated to the rights of the original creditor, it does not shorten the statutory limitation applicable to the time in which a suit should have been brought by the original creditor to enforce his security.

9. Rev. St. 1889, § 6784, allowing another action on the same grounds to be brought within a year after a nonsuit, does not curtail, but extends, the time allowed by other sections of the limitation law.

10. Judgment that a bill be dismissed "without prejudice," and that defendant recover costs, is not a conclusive adjudication which will preclude a later suit for the same relief.

11. The terms of a judgment cannot be varied or contradicted so as to give it a broader effect, by parol testimony, in a collateral suit.

12. Under Rev. St. 1889, § 2131, which provides that an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless waived, and section 2132, which provides that every other issue must be tried by the court, a jury cannot be demanded as of right in the foreclosure of a trust deed, which is of equitable cognizance.

13. Where notes are executed in one state, and the payee lives in another state, where the notes, in good faith, are dated, and the principal and interest made payable, and the notes are not void in the former state, the law of the latter state governs the agreement as to interest.

14. A beneficiary under a trust deed, who orders a sale of the property for failure to pay the interest on the debt secured, as allowed by the deed, which provides that from the proceeds of the sale there shall be paid the principal sums owing under the notes, with the interest thereon computed to the day of sale, cannot collect interest on interest coupons attached thereto, after the date of the sale which satisfies the debt, even if such sale is imperfect, and does not extinguish the equity of redemption.

In banc. Appeal from circuit court, Knox county; Benjamin E. Turner, Judge.

Bill in equity by David Long against Joseph Long and others, asking to be subrogated to claims of certain of the defendants, and for a foreclosure against Joseph Long under deeds of trust. From the decree, both plaintiff and defendant Long appeal. Transferred to the court in banc. Modified.

The following are copies of one of the notes and one of the coupons mentioned in the opinion as secured by the deed of trust wherein the Messrs. Bull were trustees. The other notes and coupons so secured are in the same general form; the only changes being in dates, amounts, and times for payment:

Note.

"Quincy, Ills., Dec. 18th, 1875. Four years after date, I promise to pay to the order of L. and C. H. Bull fifteen hundred dollars, for value received, with interest thereon at the rate of ten per cent. per annum from this date until due; at the rate of ten per cent. per annum after due until the said principal sum is fully paid; both principal and interest being payable at the banking house of L. and C. H. Bull, in Quincy, Ills., with the current rate of exchange on New York. The first payment of interest is to be made on the 1st day of April, 1876, for the period ending on that day; and thereafter the interest is to be paid semiannually on the 1st days of April and October in each year, until the last payment of interest, which is to be made for the remaining period on the day of the maturity of this note. Interest coupons for the payment of said interest are also hereunto annexed. The holder of this note may extend the time for the payment of the whole or any part thereof, on the maker executing coupons for interest to accrue thereon during such extension, at a rate not exceeding ten per cent. per annum, payable the dates herein named for the payment of interest. Such coupons to be also hereto annexed, and to be evidence of such extension. This is one of a series of (3) promissory notes of even date herewith, executed by and payable to the same parties, for an actual loan of money amounting in the aggregate to the sum of $4,000, and secured by a deed of trust of the same date upon real estate situate in the county of Knox and state of Missouri, under the provisions of which deed, should the maker of the said promissory notes fail to pay the legal holder or holders thereof any of the principal sums payable thereby, or any installment of interest on any of said principal sums, at the respective times when the said principal sums, or any of them, or any of the said installments of interest thereon, shall become due and payable by the tenor and effect of the said promissory notes and the said original interest coupons, respectively, or as the said principal, or any part thereof, or interest thereon, may become payable by and during any such extension, the trustees named in such deed, or either of them, or the survivor of them, or the executors or administrators of such survivor, may in that case at once proceed to sell the trust property at public sale, for cash, on the publication of a notice of the sale at least thirty days prior thereto, and from the proceeds of the sale pay all of the said principal sums payable by the said three promissory notes, with the interest thereon computed to the day of sale, so far as the same may then remain unpaid, together with the costs and expenses of the said trust and sale. Joseph Long."

Coupon.

"Loan No. 1,065. No. (1), coupon 9. Due L. and C. H. Bull or order on the 1st day of April, 1880, seventy-five dollars, payable without grace at the banking house of L. and C. H. Bull, in Quincy, Ills., with current rate of exchange on New York; being for the payment of interest due that day on my note to L. & C. H. Bull of even date here with, for the sum of fifteen hundred dollars, payable five years after date. If this coupon is not paid at maturity, then it is to bear interest at the rate of ten per cent. per annum from date until paid. Joseph Long. Quincy, Ills., Dec. 18th, 1876."

O. D. Jones, for appellant. Blair & Marchand and W. C. Hollister, for appellee.

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

These appeals form the latest chapter (to date) of the litigation between the brothers Long. It will not be necessary to go over the entire history of their dispute. Its principal features are described in former opinions. Long v. Long (1883) 79 Mo. 644; Long v. Long (1888) 96 Mo. 180, 8 S. W. 766; Long v. Long (1892) 111 Mo. 12, 19 S. W. 537; Long v. Long (1894) 28 S. W. 69. The case in hand came to the court in banc from the First division by transfer after the last-mentioned opinion had been rendered, and a motion for rehearing had been made. The effect of the transfer to the court in banc was to grant the rehearing, which was duly had before the entire court. The case is the same that was before the first division of the court in 1892, reported in 111 Mo. (19 S. W.). The cause was then remanded, with these directions: "On the return of this cause to the lower court, the plaintiff will be allowed to proceed with his foreclosure, provided he include within its scope the whole indebtedness due from the defendant, and shall open the sale heretofore made by him under the second or Howerton deed of trust, and shall be treated in all respects as a mortgagee in possession." After the decision quoted, the plaintiff in the circuit court (June 16, 1893) filed his second amended petition, the general outlines of which are as follows: David Long is plaintiff. The defendants are Joseph Long, Charles H. Bull, William B. Bull, Mary J. Rinehart, Frank E. Rinehart, Fanny B. McCulley, Thomas M. McCulley (her husband), Robert P. Johnson, Orville D. Jones, Samuel B. Davis, and Henry T. Howerton. None of these defendants, except Joseph Long, was a party to the cause on the first appeal in this case. Plaintiff gives at length in the petition an account of the original loan secured by the deed of trust, known to all the parties as the "Bull Mortgage." He then mentions the...