McCauley v. Brady

• Citation: 123 Mo. App. 558,100 S.W. 541
• Parties: McCAULEY v. BRADY et al.
• Decision Date: 04 March 1907
• Court: Court of Appeal of Missouri (US)

100 S.W. 541

123 Mo. App. 558

McCAULEY v. BRADY et al.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. MORTGAGES—TRUST DEEDS—FORECLOSURE—LIMITATION OF ACTIONS.

Act Feb. 18. 1891 (Laws 1891. p. 184; Rev. St. 1899, §§ 4276, 4277 [Ann. St. 1906, p.

2353]), which provides that no suit, action, or proceedings under power of sale to foreclose any mortgage executed thereafter shall be had after such obligation has been barred by limitations, and that no such suit shall be maintained to foreclose any such mortgage theretofore executed, after two years from the passage of the act, has no application to foreclosure of mortgages or deeds of trust executed and delivered before its enactment. where the debt secured was not at that time barred by limitations.

2. SAME—PARTIES—DEFECT OF PARTIES DEFENDANT.

Under Rev. St. 1899, § 4342 [Ann. St. 1906, p. 2389], requiring the inclusion of the mortgagor and actual tenant or occupier of the land among the defendants in all actions brought for the foreclosure of mortgages, the absence of the grantor in a deed of trust constituted no defect of parties, in an action to foreclose a trust deed, where, prior to such action, such grantor had conveyed his equity of redemption.

3. SAME.

Under Rev. St. 1899, § 4342 [Ann. St. 1906, p. 2889], requiring the inclusion of the mortgagor and the actual tenant or occupier of the land among the defendants in all actions brought thereunder for the foreclosure of mortgages, a petition for the foreclosure of a mortgage, omitting the tenant or occupier from the parties defendant, shows no defect of parties where it does not appear that any person is in the actual possession of the land.

4. SAME—CAUSES OF ACTION—STATING SEPARATELY—NECESSITY.

Where no personal judgment is asked in an action to foreclose a trust deed or mortgage securing several different notes, each note need not be made the subject of a separate count.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Caroline McCauley against Charles W. Brady and others. Judgment for defendants, and plaintiff appeals. Reversed.

Paxton & Rose, for appellant. J. Allen Prewitt, for respondents.

JOHNSON, J.

Action to foreclose a deed of trust in the nature of a mortgage brought by the holder, by assignment of the notes secured, against Charles W. Brady, the purchaser of the real estate described in the trust deed, and Henry D. Ashley, the trustee therein appointed. A demurrer to the petition filed by the defendant Brady was sustained, and on the refusal of plaintiff to plead further, judgment was entered against her, and the cause is here on her appeal. Defendant Ashley, being a formal party merely, was not included in the judgment, and makes no appearance here.

The petition, omitting the caption, is as follows: "Plaintiff states: That on May 3, 1887, one N. S. Griffith executed and delivered to Joseph S. Ford and Smith M. Ford his three promissory notes, dated April 14, 1887, for the sum of $333.33, each due respectively in one, two, and three years after date, payable at Armour Bros. Banking Company, with interest at 8 per cent. per annum, payable semiannually. That on the same date the said N. S. Griffith executed and delivered a deed of trust, which is recorded in book 155 at page 80 in the recorder's office at Independence, Mo., by which he conveyed lots 11 and 12, block 8, in McCauley Park, an addition in the city of Independence, Mo., to Henry D. Ashley, trustee for Joseph S. Ford and Smith M. Ford, to secure the payment of said indebtedness. That on the ____ day of ____ the said Joseph S. Ford and Smith M. Ford, for value received, transferred and assigned by indorsement the said notes to the plaintiff, who is now the legal holder of the same, but she has lost the same, and is now unable to produce them. Plaintiff states that said N. S. Griffith and his grantees have conveyed their interest in the said real estate to one Chas. W. Brady and the said real estate is now owned by the said Chas. W. Brady subject to the lien upon the same of the said deed of trust. Plaintiff further avers that no part of the said notes have ever been paid, and that the whole amount thereof is due and payable, and that the said deed of trust is a valid lien upon said lots to secure the payment of the said notes. Wherefore plaintiff prays for a decree that the defendant Chas. W. Brady, and all persons claiming under him, may be foreclosed of all interest, lien, and equity of redemption in the premises mentioned and described as aforesaid, that the same be sold and the proceeds thereof applied to payment of the costs of this suit, and then to the payment of the principal and interest of said notes, and that she may have all other proper relief."

The grounds of demurrer to this pleading thus are stated: "First. Because said petition does not state facts sufficient to constitute a cause of action. Second. Because it appears on the face of plaintiff's petition that her action, if it ever existed, is barred by the ten-years statute of limitations. Third. Because it appears on the face of plaintiff's petition that there is a defect of parties defendant. Fourth. Because it appears on the face of plaintiff's petition that her action is barred by the ten-years statute of limitations and the act of February 18, 1891, Laws 1891, p. 184, now sections 4276 and 4277, Rev. St. 1899 [Ann. St. 1906, p. 2353]." The demurrant asserts the same ground in the second and fourth paragraphs; i. e., that as the notes which evidence the debt secured were barred by the statute of limitations, the right to foreclose the lien of the deed of trust securing their payment likewise is barred. When the notes and deed of trust were executed and...