Long v. Long

• Decision Date: 12 November 1894
• Citation: 28 S.W. 69
• Parties: LONG v. LONG.
• Court: Missouri Supreme Court

28 S.W. 69

LONG v. LONG.

Supreme Court of Missouri, Division No. 1.

November 12, 1894.

INVALID FORECLOSURE OF MORTGAGE — PURCHASE BY JUNIOR MORTGAGEE — RECOVERY OF DEFICIENCY — EQUITY JURISDICTION.

Plaintiff, a junior mortgagee, purchased land from a senior mortgagee, who bought the land at foreclosure sale. It was afterwards adjudged that the sale was void, but that plaintiff, having paid their full value, took an equitable assignment of the mortgage notes. Plaintiff then, under foreclosure of his junior mortgage, acquired the legal title to, and obtained possession of, the land. Held, that plaintiff was not entitled to a judgment in equity against defendant on the first mortgage notes, the land being worth the amount thereof, and must sue at law for any balance due on the second mortgage notes.

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

Suit by David Long against Joseph Long for equitable relief. From the decree, both parties appeal. Reversed.

O. D. Jones, for plaintiff. Blair & Marchand and W. C. Hollister, for defendant.

BLACK, C. J.

This case was here before on the appeal of the defendant, Joseph Long. 111 Mo. 13, 19 S. W. 537. The cause was remanded, and thereafter the plaintiff filed an amended petition, setting up what is called the Howerton deed of trust. The case now made by the plaintiff's pleadings, admissions in the defendant's answer, and the evidence is to the following effect: On the 18th December, 1885, the defendant, Joseph Long, conveyed some 600 acres of land located in Knox county, in this state, to Charles H. and William B. Bull, in trust to secure three principal and several interest notes, all signed by Joseph Long, and payable to the order of L. & C. H. Bull, of Quincy, Ill. The notes all bear even date with the deed of trust. One of the principal notes is for $1,000, and the other two for $1,500 each, due, respectively, in four, five, and six years after date. To each of these notes were attached semiannual 10 per cent. interest notes, the first set maturing on the 1st April, 1876, and the others on the 1st days of October and April of each year, The interest notes falling due prior to October, 1877, were paid by Joseph Long, but he made default in the payment of the interest notes due on the last-named date. In the meantime the Bulls sold and transferred the notes to the Phoenix Mutual Life Insurance Company. Because of the default in the payment of the interest notes due on 1st October, 1877, the insurance company caused the trustees to advertise the land for sale, and, pursuant thereto, the land was sold on the 27th November, 1877, and Mr. Goodman became the purchaser for, and as the agent of, the insurance company. Goodman purchased the land at the price of $3,471, that being the full amount of the principal notes and all unpaid interest, Goodman then conveyed the land to the plaintiff, David Long, for the consideration of $3,471, the amount bid by Goodman. On the 5th July, 1877, which was prior to the date of trustees' sale just mentioned, Joseph Long executed a second deed of trust, and thereby conveyed the same property to one Howerton in trust to secure a note of $2,033, executed by Joseph Long, and payable to the plaintiff. It was to protect this debt that plaintiff purchased the property of Goodman, the purchaser under the Bull, or first, deed of trust. The plaintiff brought an action of ejectment against Joseph Long, basing his right to recover on the deed from Goodman to him. He recovered judgment in that suit, and was put in possession of all of the lands in March, 1881. The judgment in that case was reversed, this court holding the trustee's sale void for the reasons assigned in Long v. Long, 79 Mo. 644. Pursuant to that judgment the plaintiff yielded up possession to Joseph Long on the 18th April, 1884. The plaintiff obtained possession again in July, 1885, and has been in possession since that date. By this suit the plaintiff seeks to be subrogated to all the rights of the Phoenix Mutual Life Insurance Company in and to the Bull notes and deed of trust. He also asks for an accounting and a foreclosure of both deeds of trust. The trial court stated an account of the interest due on the notes secured by both deeds of trust, of taxes paid and improvements made by the plaintiff, and charged him with rents, leaving a balance of $11,663 due the plaintiff, and gave judgment foreclosing both deeds of trust, with a judgment over against the defendant for any balance that may be due after applying the proceeds of the sale of the lands....