McCormick v. Fitzmorris

• Decision Date: 31 October 1866
• Citation: 39 Mo. 24
• Parties: WILLIAM MCCORMICK, Appellant, v. PATRICK FITZMORRIS, ANN SHEA, AND MARY DORAN, Respondents.
• Court: Missouri Supreme Court

39 Mo. 24

WILLIAM MCCORMICK, Appellant,

v.PATRICK FITZMORRIS, ANN SHEA, AND MARY DORAN, Respondents.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Land Court.

This was an action of ejectment brought by the appellant against the respondents for a lot of ground in the city of St. Louis, and was tried by the court. The plaintiff read in evidence-- 1. A deed from the sheriff to the plaintiff in the statutory form, reciting, among other things, a judgment dated February 10, 1862, rendered in the St. Louis Circuit Court, in favor of the plaintiff, against John Doran, and an execution on said judgment dated March 24, 1862, and stating a levy by the sheriff and sale to the plaintiff on April 17, 1862, for $100. This deed was recorded December 9, 1863.

2. Deed from Samuel W. Brown to said John Doran, dated June 12, 1857.

3. Deed from John R. Shepley to the said Samuel W. Brown, dated October 11, 1848.

4. Also a deed of trust, in the usual form, from said Doran and his wife to Morgan Casey's trustee, dated August 11, 1860, to secure three notes of said Doran in favor of said Casey, all of said date, one for $500 at one year, and the others each for $25 at 6 and 12 months respectively. This deed was recorded August 11, 1860.

5. Also a deed of trust, in the same form, from said Doran and wife to the defendant, Ann Shea's trustee, dated April 19, 1861, to secure a note of said Doran in favor of the said Ann Shea, for $1500, cash loaned, of same date as deed, and payable in two years. This deed was recorded April 22d, 1861.

6. Also a deed from Ann Shea's trustee to the said Ann Shea, conveying the said property to her for the price and sum of $1525. Sale on August 29, 1863. This deed was recorded August 29, 1863.

It was proven that Fitzmorris was in possession as tenant of Mrs. Shea. It was proven that the said Ann Shea had bought, and at the time of the trial still held, the Casey note, and that there had been no sale under the first deed of trust to secure the same. Several witnesses, experts, were sworn by the plaintiff, who stated their opinion that the deed to Ann Shea's trustee had been altered in the description of the note from ten to two years, so as to make it read two years instead of ten; but as to who altered it, or whether it was done before or after it was executed, none of these witnesses could say.

A. C. Bernoudy, county recorder, testified as follows:--“The deed here shown me from Doran and wife to Ann Shea's trustee has been changed. It has the appearance of having been done by another penman than the original writer of the deed. The alteration occurs in the description of the note; the word “ten” years has been changed so as to read two years. This deed has been recorded in the book which I hold in my hand.”

Plaintiff's attorney then offered in evidence the record of the deed in question, to show that the description of the note, as recorded, shows that it was given for ten instead of two years, and asks the witness to read it. Objection by defendants and objection sustained and exceptions by plaintiff.

On cross-examination, Bernoudy said: “I did not record the deed in question myself; it was done by a clerk who is absent from the city at present. I don't know when the deed was altered; it may have been done at the time it was written. I don't know any thing about it--when it was done, or by whom it was done.”

Mr. McDonald, attorney of the plaintiff, gave evidence of a conversation had by him with Mrs. Shea for the purpose of showing that the loan by her to Doran was for ten years instead of two.

Plaintiff then asked the following instructions:

1. The recitals in the deed of John H. Andrews, sheriff of St. Louis county, to Wm. McCormick, are evidence of the judgment and execution therein mentioned, no objection having been made.

2. The recitals in the copy of the execution which accompanied said sheriff's deed will be received as evidence of the facts therein stated, no objection having been made to the same.

3. If the court, sitting as a jury, believes from the evidence in the cause that the deed of trust from Doran and wife to Shea's trustee, dated April, 19, 1861, has been materially altered or changed since its execution and delivery, then the verdict will be for the plaintiff.

These instructions were refused, and the plaintiff excepted.

On the request of the defendants, the following instructions were given, to which the plaintiff excepted:

1. Before the plaintiff can recover in this cause, it is necessary that the judgment and execution under which the sheriff's sale was made, and the validity of such judgment and execution, should be established by competent evidence in the cause; and the mere recital in the plaintiff's deed that there was a judgment and execution is not sufficient for that purpose.

2. If the court, sitting as a jury, believe from the evidence that Doran and wife executed the deed of trust, dated April 19, 1861, whereby they conveyed the property, described in the petition, to Timothy Scanling, in trust, to secure an indebtedness to one Shea, mentioned in said deed, and that said deed was filed for record May 22, 1861; and that in discharge of the trust thereby created, and in pursuance of said deed, Scanling exposed said property for sale, and that said Shea became the purchaser thereof, and that said Scanling in discharge of said trust executed the deed dated August 29, 1863, conveying said real estate to said Shea; and that subsequent to the execution and delivery of said deed of trust McCormick recovered his judgment against the said Doran, and execution was issued thereon, and the property described in the petition was sold, and McCormick became the purchaser, and the sheriff executed the deed in evidence to said McCormick, then the verdict ought to be for the defendants.

3. If the deed from Doran's trustee to Shea, dated August 29, 1863, was filed for record prior to the deed of Doran, by the sheriff, to plaintiff, McCormick, then the former deed has preference, and carries the title in preference to the latter, unless it appears, from competent evidence in the cause, that the sheriff sold under a valid judgment recovered before the deed of Doran and wife to Shea's trustee, dated April 19, 1861, was recorded.

The Court rendered judgment for the defendants. The plaintiff moved for a new trial, &c., and appealed.

Day and R. S. McDonald, for appellant.

I. The sheriff's deed, offered in evidence, contained the recitals required by law, and was prima facie evidence of the legality of the sale and the proceedings thereon, and that it had been made in accordance with law, and also of the judgment and execution, and should have been so received--R. C. 1855, p. 748, § 56; Gwynn on Sheriffs, 339; Longworth v. Bk. of U. S., 6 Ohio, 536; Hardy v. Heard, 15 Ark. 186; Newton v. State Bk., 14 Ark. 10; Lackey v. Lubke, 36 Mo. 123; Tanner v. Stine, 18 Mo. 583; Perkins v. Dibble, 10 Ohio, 437.

II. In any case, the defendant, by permitting the sheriff's deed to be offered in evidence without objection, waived any right he might have to object to it for want of proof of the validity of the judgment and execution--Wright v. Sharp, 1 Salk. 288; Bank of Mo. v. Hall, 7 Mo. 276.

III. The evidence in the case was of a character to throw the burden upon the defendant to explain the alteration in the deed of trust from Doran and wife to the trustee of Shea, and through which the defendant claimed title, and until explained, invalidated the title to the property as against the plaintiff-- Briggs v. Glenn, 7 Mo. 572; Mathews v. Coalter, 9 Mo. 705; 1 Greenl. Ev. 629, § 564; 1 Phil. Ev. 606, § 565 & n.; 3 Id. 461.

IV. The record of the deed of trust should have been admitted in evidence as being competent evidence tending to show the alteration in the deed of trust regarding the description of the note to have been made subsequent to the recording of the same.

V. The fact that there is an outstanding encumbrance on said property by way of deed of trust affords no defence against this plaintiff at least, unless the trustee chooses to assert his title: and unless he does this, the title of the trustee is a mere dry trusteeship for the protection of the debt secured, and is in abeyance until enforced--1 Hill on Mort. 105-9; Ellison v. Daniels, 11 N. H. 279-80.

A. Hamilton and C. G. Mauro, for respondents.

I. Whether it was correct to require the plaintiff to show the judgment and execution is unimportant, as there was a perfect defence to the case. If the sale under the second deed of trust to the defendant Mrs. Shea was a nullity, still the legal title was outstanding in the trustee--Jackson v. Jacoby, 9 Cow. 126; Smith v. McGowen, 3 Barb. (S. C.) 405. If this was not so as to that deed, it certainly was so as to the first. Both of these deeds were prior to the judgment; and the note, to secure which the first deed of trust was given, was due some time before the judgment was recovered, and was held by Mrs. Shea; whose position was that of a mortgagee in possession after forfeiture, and who was no more liable to be turned out of possession by the plaintiff than by Doran himself. The plaintiff had not even the naked legal possession of his debtor to levy upon--11 Am. L. Reg. 655-6; Meyer v. Campbell, 12 Mo. 616; Den v. Wright, 2 Hal. L. R. 178; Walcop v. McKinney, 10 Mo. 229; 1 Hill. Mort. 111, § 33, and cases in note; Page v. Robinson, 10 Cush. 102.

II. As stated, both deeds of trust were introduced by the plaintiff. The whole inquiry as to whether there had been an alteration, and if so, whether the alteration was of such a character, or so manifest from the face of the deed, as to put the defendant Mrs. Shea to proof explaining it, was before the judge who tried the cause, whose finding will not be disturbed. There is nothing in the record to show that the finding or the result of the inspection by the court below was erroneous. The record of the deed proposed to be read by the...