Mason v. Barnard

• Decision Date: 31 October 1865
• Citation: 36 Mo. 384
• Parties: WILLIAM T. MASON. Defendant in Error, v. JOSEPH S. BARNARD AND ELIZA B. FITHIAN (HUGH A. GARLAND AND JOHN G. PRIEST, TRUSTEES), Plaintiffs in Error.
• Court: Missouri Supreme Court

36 Mo. 384

WILLIAM T. MASON. Defendant in Error,

v.JOSEPH S. BARNARD AND ELIZA B. FITHIAN (HUGH A. GARLAND AND JOHN G. PRIEST, TRUSTEES), Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Land Court.

On the 9th May, 1859, Catherine Graham conveyed a lot of ground to Joseph S. Barnard for a consideration, which was partly paid in cash, and for the remainder he executed five promissory notes, all dated 9th May, 1859, one for $319.80, due six months after date, and four others, each for $638.16, due respectively in one, two, three and four years from date, and bearing six per cent, interest until paid. To secure these notes, Joseph S. Barnard executed a deed of trust on the land, bearing date the 9th May. 1859. By this deed it was provided, that, if default should be made in the payment of any one of said notes, “then all of said notes, at the option of the holder thereof, might be considered as due, and the said trustees, or either of them, might, without waiting for the maturity of any of the other notes, proceed to sell the said property, or any part thereof, at public vendue,” &c., &c. “It being also agreed that in case any of said notes should remain unpaid after maturity, the same should bear interest therefrom at the rate of ten per cent. per annum, payable yearly.” On the 13th June, 1859, Joseph S. Barnard executed and placed on record a deed of that date, whereby he conveyed to Eliza B. Fithian, in consideration of her assuming $4,780.83, certain tracts of land, including the land conveyed to him aforesaid. This deed was executed by Joseph S. Barnard, not by Eliza B. Fithian.

It further appeared from the petition, that the last three of the above described notes “came to the possession of the plaintiff by delivery, and that thereupon and therefore he became the legal holder thereof, and en titled to the money due thereon, and to enforce the said deed of trust; “that the two years note is due and unpaid, and that the other two notes not yet due are also wholly unpaid;” that the said William T Mason “elects to consider the notes above mentioned payable in three and four years immediately due, and payable in accordance with the terms of the said deed of trust.” Wherefore, he “““prays judgment that the defendants” [who were Joseph S. Barnard, Eliza B. Fithian and the two trustees in the deed of trust], &c., &c., “be foreclosed of all interest, lien and equity of redemption in the said premises, and that the same be sold; that the proceeds thereof be applied to the payment of the costs and expenses of this action, and the payment of the amount due on said notes, under and in accordance with the terms of the said deed of trust, with interest on the said money up to the time of payment; and if the money arising from the sale of said premises should be insufficient to pay the amount due and coming to the plaintiff on account of said debt, on the ascertainment of such deficiency the plaintiff may have judgment over personally against as well the said Eliza B. Fithian as the said Joseph S. Barnard for the amount thereof, together with interest and costs,” and such further relief as to the court might see fit.

This petition was filed on the 12th December, 1861, and on the same day a writ of summons was issued against all the defendants and returned served.

On the 10th day of February, 1862, there was a decree pro confesso against Barnard and Fithian. Garland and Priest, trustees in the deed, answered; and on the 23d October, 1862, the following decree was made:

“William T. Mason v. Joseph S. Barnard, Eliza B. Fithian, Hugh A. Garland, and John G. Priest.

Now, at this day this cause coming on for trial, and the petition of the plaintiff having heretofore been taken as confessed against the defendants Joseph S. Barnard and Eliza B. Fithian, who, although summoned and called, failed to appear and answer the same, and all of said defendants now failing to appear, on motion of the plaintiff's attorney, the same is submitted to the court for trial on the pleadings and proofs; and the court having duly heard and considered the same, and it appearing therefrom that the plaintiff is entitled to the judgment asked for in his petition, and proceeding to ascertain the amount due and payable to the plaintiff by the defendants Joseph S. Barnard and Eliza B. Fithian, for the debt mentioned in the petition and the deed of trust set forth therein, and interest thereon to the date thereof the court doth find the same to be two thousand three hundred and eleven dollars and thirty-seven cents. The court doth therefore order, adjudge and decree, that the plaintiff do recover of the said Joseph S. Barnard and Eliza B. Fithian, the said sum of money, together with legal interest thereon from the date hereof, and the costs of this suit, to be levied of the following real estate,” &c., &c. (describing the land designated in the deed of trust), “and it is further ordered, adjudged and decreed, that if the said real estate and premises be not sufficient to satisfy the said debt, interests and costs, then the residue thereof shall be levied of other goods, chattels, lands and tenements of the defendants, Joseph S. Barnard, Eliza B. Fithian,” &c., &c.

To reverse this judgment, Joseph S. Barnard and Eliza B. Fithian brought a writ of error.

T. T. Gantt, for plaintiff in error.

I. It was grossly irregular to take judgment on notes not yet due, even as against Joseph S. Barnard; and as against Eliza B. Fithian, who was never a party to these notes, such judgment was an absolute nullity.

II. It was wholly without legal warrant that the court proceeded to give against Eliza B. Fithian any judgment extending beyond her interest in the property described in the deed of trust, or subjecting any other property of hers to execution under that judgment. (Riley, Adm'r, v. McCord, 24 Mo. 265; R. C. 1855, §§ 10-11, p. 1089; Simmons v. Blake, 20 How., N. Y., 482-486.)

III. The proceeding as to Mrs. Fithian is not only irregular so far as to be erroneous, but it is utterly void so as to defeat the title of the purchaser under such judgment of any property not embraced in the mortgage deed, or deed of trust. (20 How., N. Y., Prac. 482.)

IV. Although there is an allegation in the petition that “by the terms of the same conveyance the said Eliza B. Fithian [did] expressly assume and agree to pay off and discharge the amount of said encumbrance, or deed of trust upon the said premises, as a part of the consideration or purchase money therefor,” yet the petitioner makes this same deed a part of his petition, and it is quite plain from an inspection of its tenor, that this allegation is untrue in fact and in law, and so it appears on the face of the petition itself that Eliza B. Fithian was in no wise liable for this debt or encumbrance.

V. It equally appears from the petition itself that the plaintiff was not entitled to judgment for the debt or encumbrance against any one, the debt not being due even when judgment was rendered, and still more, not due when suit was commenced.

R. M. Field, with Glover & Shepley, for defendant in error.

I. The petition shows a good cause of action against Mrs. Fithian. The deed to her was not a grant of the mere equity of redemption subject to the debt, but was a conveyance of the land generally, she taking the title and agreeing to pay off and discharge the encumbrance as a part of the consideration. In equity, as between herself and Barnard, she thus became the principal debtor, his situation being that of surety for her. (24 N. Y. App. 178; 14 Iowa, 476; 21 Texas, 27; 4 Ohio. N. S. 353; 15 Ind. 160.) The acceptance of the deed, with such a clause in it is equivalent to an express promise to pay the mortgage debt. (1 Gray, 317.) It [is] not necessary to aver the delivery or acceptance of a deed; and an acceptance will be...