Mann v. Best

• Decision Date: 31 May 1876
• Citation: 62 Mo. 491
• Parties: GEORGE H. MANN, et al., Appellants, v. WILLIAM BEST, et al., Respondents.
• Court: Missouri Supreme Court

62 Mo. 491

GEORGE H. MANN, et al., Appellants,

v.WILLIAM BEST, et al., Respondents.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Gentry Circuit Court.

Bennett Pike, with G. W. Lewis, for Appellants.

I. The county court had no right to take such a mortgage for school moneys. It had no power to do any act in relation to the loaning of the school fund, except such as the laws of the State specifically gave it. (Ray Co. vs. Bentley, 49 Mo., 236; R. C., 1855, p. 1424, § 22; Id., p. 1425-6, § 30; Norcum vs. D'Oench, 17 Mo., 117.)

II. The mortgagor in the mortgage could confer no power upon said county court to appoint an agent to sell said mortgaged lands, or to convey the same, nor could the county court make good the act of the agent by ratification. (Hodges vs. City of Buffalo, 3 Den., 110; English vs. Smock, 34 Ind., 115; 7 Am. R., 215; Frees vs. Ford, 6 N. Y., 176.)

III. The sheriff's return, that he had posted the notices, is ot evidence. His certificate of the fact is a mere statement of a private individual.

IV. The agent, selling the land, and the purchaser, were jointly interested in the purchase. This renders the sale void so far as the purchaser is concerned, and his vendee who is not an innocent purchaser. (Wooton vs. Hinkle, 20 Mo., 290; Hook vs. Turner, 22 Mo., 333; Durfee vs. Moran, 57 Mo., 379; Thornton vs. Irwin, 43 Mo., 153.)

V. Defendant was not an innocent purchaser as he took by quit claim deed. (Ridgeway vs. Holliday, 59 Mo., 444.)

Isaac P. Caldwell, with J. C. Howell, for Respondents.

I. Foreclosure may be accomplished in accordance with the terms of a power of sale. (Beatie vs. Butler, 21 Mo., 321; 1 Hill. Mort., 3d ed., 130, 140; 2 Id., 51, 74, 78, 79, 82-3; Bergen vs. Demarest, 4 John. Ch., 37; Elliott vs. Wood, 53 Bart. [N. Y.], 285; Tuthill vs. Tracy, 31 N. Y., 157; Cormerais vs. Genella, 22 Cal., 116; Johnstone vs. Scott, 11 Mich., 232; Donnelly vs. Simonton, 7 Minn., 167; Leffler vs. Armstrong 4 Iowa, 482.)

II. The statute (R. C. 1855, p. 1424, § 22) is directory. (Marion Co. vs Moffatt, 15 Mo., 604; Pot. Dwar. Stat., 221-6 and notes.) The mortgage is distinguished from those mentioned in Jones vs. Mack (53 Mo., 147), and Honaker vs. Shough (55 Mo., 472). They were drawn according to the statute. In the first, the sheriff sold without an order. In Honaker vs. Shough, the order of sale misdescribed the land, and did not correctly recite the debt, so as to identify the mortgage. This is simply a mortgage with power of sale, and is good at common law.

III. The property being in the hands of an innocent purchaser for value, redemption will not be allowed unless the sale is absolutely void. If plaintiff had any remedy, it was against other parties. (Rutherford vs. Williams, 42 Mo., 34; Goode vs. Comfort, 39 Mo., 328.)

IV. The copy of the notice and the return, showing the posting of the notices, were properly admitted in evidence. (1 Greenl. Ev., §§ 115, 116.)

V. The petition contains no equity. There is no offer to pay the whole amount of the mortgage debt, but only a fractional part of what is due. (Mullanphy vs. Simpson, 4 Mo., 319; Polk vs. Clinton, 12 Bes., 59; 2 Black. Com. [[[[[Sharswood's notes], 159, note 8; Crafts vs. Crafts, 13 Gray, 363; Hill Mort., 1st vol., 402-3, and notes.)

NAPTON, Judge, delivered the opinion of the court.

The plaintiffs in this case, who are four of the five heirs of Jeremiah Wright, by their petition, filed in 1872, ask to redeem a mortgage given to Gentry county by said Wright to secure the sum of $1,010, borrowed of the school fund. The mortgage was given in 1859, and the deed stated that the party of the second part (Gentry county) “is hereby authorized and empowered by the said party of the first part, by her agent to be appointed by the county court for that purpose, to sell said described premises, or any part thereof, first giving twenty days' notice, etc.”

Wright, the mortgagor, died in 1862, and in April of that year, after Wright's death, the county court of Gentry county appointed C. G. Comstock, who was then county attorney, as a commissioner to “foreclose the mortgage.” Comstock advertised the land for sale by a notice, which he handed to the sheriff, and the sheriff's return upon the advertisement was in writing, and was, that he had posted up copies of it in six public places in Gentry county, at least twenty days before the day fixed for the sale in said notice. The sheriff was dead at the trial, and the certificate was given in evidence as proof of the publication being in conformity to the terms of the mortgage. One Cunningham became the purchaser at the price of $400, which was about $1.40 per acre for the entire tract of 280 acres. The farm was worth from two to three thousand dollars.

Before the sale, an arrangement was made between Cunningham and Comstock, that Comstock would furnish half the money for the purchase, and he and Cunningham would jointly reap any profits which might arise from the sale. The sale was duly reported to the county court, who approved of it, and Comstock made a deed to Cunningham, to the form of which no objections are made.

In 1864 Cunningham sold this land, or at least conveyed his interest in this land by a quit-claim deed to the defendant, Best, who had shortly before migrated from Kentucky, and who, it appears from the testimony, had no information in regard to the interest of Comstock in this land, or to the arrangement between Comstock and Cunningham. Best took a quit-claim deed and paid $2,000 for it, and in his defense sets up that he was a bona fide purchaser for a valuable consideration without notice. After Best went into possession, he paid $100 to the oldest son of Wright for his interest, and took a relinquishment from him of his interest, and also executed a paper to the administrator, promising to pay $100 to each of the other heirs, on their arriving at age, for their interest in the land.

The plaintiffs ask that they be allowed to redeem four-fifths of the mortgage, and that Best be required to redeem the other one-fifth. The circuit court, after hearing all the evidence, decided for the defendant, and from this judgment an appeal is taken to this court.

For the plaintiffs it is insisted in this court, that the mortgage taken by the county court was void, since it did not conform to the requisitions of the statute concerning the loan of school funds; that the county court had no power to appoint an agent or commissioner to sell the mortgaged lands, or to ratify such a sale after it was made by the agent; and the decision of this court in Ray Co. vs. Bentley (49 Mo., 236), is mainly relied on to show that this court can only control the school fund in the manner specifically pointed out by law.

In that case the county bought in the mortgaged land through the agency of the county court, and this was held beyond the power of the court, and against the general policy of the act regulating the disposition of this fund. But we consider the 22d section of the act of 1855 (R. C. 1855, p. 1424) as merely directory. It specifies the kind of mortgage which the court is required to take, and is so particular as to give in substance all the provisions it should contain. Where the mortgage is taken under these provisions, the statute must be in all respects complied with; but we do not see that the interest of the school fund would be advanced by holding that any other mortgage, which would be good at common law, should be held void. The mortgage in this case did not follow the prescribed form, but was a mortgage with a power of sale, conferred by the mortgagee in the instrument, to be executed in a mode pointed out in the mortgage. The neglect of the county court to follow the directions of the statute ought not to destroy a security otherwise good and effectual to accomplish the same purposes.

The power of the county court to appoint an agent to sell the land, upon the failure of the mortgagor to pay the debt, is conferred on the court expressly by the mortgagor himself. This power is not derived from the statute, and the proceeding under it cannot be governed by the statute. A mortgage with a power of sale in the mortgagee, or by his agent, has been repeatedly recognized as valid by this court, and no reason suggests itself why it should not be so where a county is the mortgagee. The order of the county court, directing the agent to “foreclose,” was substantially an order to sell, as that was the mode of foreclosure authorized by the mortgagor.

In regard to the proof of the publication of the advertisements, there is some ground for doubt; but I think the proof was admissible. Had the sheriff been required by law to put up such notices, there could be no...