McNair v. Lott

• Decision Date: 31 March 1857
• Citation: 25 Mo. 182
• Parties: MCNAIR et al., Appellants, v. LOTT et al., Respondents.
• Court: Missouri Supreme Court

25 Mo. 182

MCNAIR et al., Appellants,

v.LOTT et al., Respondents.

Supreme Court of Missouri.

March Term, 1857.

1. To extinguish or bar an equity of redemption, where lapse of time alone is relied on, twenty years must have elapsed since the last recognition of the mortgage.

2. A demurrer should be resorted to to raise the defense of the statute of limitations, if at all, only where it clearly appears that the plaintiff's case has been fully stated, and that, being so stated, no recovery can be had.

3. A., in the year 1819, to secure the repayment of a loan of money, executed an instrument in the French language in the form of a French hypothecation and containing the words, “ obligé, engagé, alliené, affecté et hypothequé; held, that this was a mortgage within the act of October 20, 1807, concerning mortgages. (1 Terr. Laws, p. 182.)

Appeal from St. Louis Land Court.

Demurrer to a petition. Plaintiffs state in their petition substantially that, in the year 1819, the late Col. Charles Dehault Delassus was the owner and proprietor of, and as such had possession of, a certain tract of twenty arpens, known as survey No. 332, in the name of Joseph Brazeau; that afterwards said Charles became indebted to Baptiste Douchouquette and Marie Therese Brazeau, in the sum of $4,000 for money loaned him, for which he agreed to pay each at the rate of ten per centum per annum until paid; and to secure the payment of one-half of said sum to each, he did, on the 7th day of January, in the year 1819, execute and deliver to each of them his four several promissory notes, each for the sum of $200, due and payable on the 20th December, in the years 1819, 1820, 1821 and 1822, with interest on each at the same rate from maturity; that he at the same time made and delivered to each a deed of conveyance, in the nature of a mortgage,^a1 of and to said tract of land, which said deeds had conditions, that in the event said Charles paid the sum of $2,000 to each on or before the 20th of December, 1823, with interest, the said deeds were to become inoperative, and said interest notes not due were to be delivered up and canceled; that said deeds and notes were signed and sealed, and were written in the French language; were accepted and were duly recorded; that in the year 1819, by written agreement made between said Baptiste and Marie, the former was vested with power to manage her estate, and at her death became absolute owner thereof; that he assumed such management during her life, and at her death owned and claimed her property, including the debt due as aforesaid; that the first interest note due said Marie was paid and canceled; that the one first due said Baptiste was reduced by credits to fifty-five dollars; that afterwards the remainder of said indebtedness being due and unpaid, said Baptiste, in the name of himself and said Marie respectively, instituted proceedings in the Circuit Court of said county--one to foreclose the equity of redemption of said Charles under said deeds and sell said lands-- the other by action of assumpsit to obtain judgments for said debts due each as aforesaid; that at the July term of said court, 1824, without service of process, judgments were rendered in favor of each for the sale of said land on a particular day named; also for the principal and interest due each, and secured by said deeds in the actions of assumpsit; whereby each obtained judgments in two forms of proceedings in the same court, at the same time, for the same debt due each as aforesaid; upon each of which judgments executions issued in 1824, and were not executed, but returned by order of plaintiffs to clerk's office. Afterwards, in 1827--said Charles then being a resident of the State of Louisiana, and said judgments unsatisfied--said Baptiste, with the knowledge of one Theodore D. Papin, his agent and son-in-law, caused a fi. fa. to issue against said Charles (then absent), on the judgment in assumpsit in his name, and the said tract or survey levied on, and all the right, title, estate, etc., of said Charles therein, sold subject to all prior judgments and decrees; that said Papin became the purchaser at the bid of $1,050; that before and at the time of said levy, sale and purchase by Papin, said tract of land was in the actual possession, use and enjoyment of the said Baptiste in virtue of said mortgage deeds; that Papin, with full knowledge of all the above facts in regard to said judgments and land, and knowing that his said purchase was void and inoperative, did, on the 19th day of December, 1827, purchase of said Baptiste and Marie their right and estate in said tract of land, and received possession thereof, and a deed of conveyance thereof; that afterwards said Marie died, and by the said agreement made with said Baptiste, in 1817, her interest in said judgments passed to and became vested in him; that in 1834 said Baptiste made his will, constituting said Papin and his son, Baptiste Douchouquette, executors thereof, and then died; that said will was duly proved; that said Papin and Baptiste, the son, assumed on themselves, in due form of law, the execution thereof; that afterwards, on the 16th of December, 1836, said Charles paid to the executors the full amount of each of said judgments or debts secured by said deeds of mortgage; that as evidence thereof, Papin and Douchouquette, as executors, in the vacation of said Circuit Court, in the presence of the clerk thereof, did, on the minutes or record of each of said judgments, enter on the margin of each an acknowledgment of “full and entire satisfaction,” which acknowledgment was signed by them and attested by the clerk, whereby said Charles became released from said judgments; that from neglect or ignorance they failed to enter a like acknowledgment in the margin of the record of said deeds of mortgage in the recorder's office; that they failed to execute a deed of release of said land as required by law; that said Papin had assigned and transferred his right to the use and possession of said land, excluding said mortgage debts, to one William T. Philips, who entered and took possession of the same with full knowledge of all the before recited facts in regard to said land; that after the payment of said judgments, in 1836, said Charles returned to his home in the State of Louisiana, and there died intestate, leaving Augustus Delassus, his only child, heir and legal representative, who did not come to the knowledge of his right and claim to the land until 1848 [various deeds of conveyance are here set forth from said Augustus Delassus to plaintiffs]; and the plaintiffs charge and aver that the execution, under which said Papin purchased said land in 1827, issued on a judgment for the identical debt due said Douchouquette, and to secure the payment of which said deed of mortgage was executed by said Charles in 1819, and none other; that the same was in due form of law paid and satisfied in 1836--all of which was known to said defendants, and each of them, at the time they entered and took possession of said land; that said defendants, and each of them, and those under whom they claim parts of said land, entered and took possession of the same under the right and title of the said Charles, and none other; that they now refuse to surrender possession thereof and release their claim, although requested so to do; that said defendants, and each of them, and those under whom they claim, and hold parts of said land, entered and took possession thereof as trustees by deeds of assignment from said mortgagees, Baptiste and Marie, to Papin, and from him to said Phillips as aforesaid; that the sale and purchase under said execution by Papin was a fraud on the rights of said Charles, and the deed executed by the sheriff as evidence thereof was inoperative and void; that should said sheriff's deed to Papin be considered valid and operative to pass the right of said Charles to redeem said land, then plaintiffs charge that the payment of said mortgage debts and judgments by said Charles, in 1836, did vest in him all the right of said mortgagees, Baptiste and Marie, to subject said tract of land to the payment of said debts in the possession of defendants, assignees of said Papin, as before stated; that since said land was surveyed, in 1836, there has been much accretion thereto on the river front by deposit and other causes, all of which is the property of plaintiffs, and is now claimed by defendants as assignees of said Papin; that no part of the rent of the said tract has been accounted for to the said Charles in his life-time, or, since his death, to his son and legal representatives or plaintiffs; nor has the said sum of $10,693.28, paid by said Charles, in 1836, to the executors of Douchouquette, or any part thereof, been refunded to him, his said son, or plaintiffs. Wherefore plaintiffs pray that defendants, and each of them, be compelled to surrender to plaintiffs said land, and the accretions thereto, as now held and claimed by them, and by proper deed release all right thereto as derived from said Papin; or, that said land be subjected to the payment of said two mortgaged debts paid by said Charles, in 1836, with interest thereon, to-wit: said sum of $10,693.28; that plaintiffs be restored to the possession and quiet enjoyment of said land, and all accretions thereto, with a reasonable compensation for the rents and profits of said land, and damages, etc., and for such other and further relief, etc.

This petition was filed in the St. Louis Land Court, Feb. 22, 1856. The defendants demurred to the petition, and set forth as grounds of demurrer that the petition does not state facts sufficient to show a cause of action; that there is a defect of parties plaintiff; also of parties defendant; that all the parties appearing to be interested, and through whom the defendants severally claim title, are not made parties defendant; that the petition is multifarious in various respects;...