McQuie v. Peay

• Decision Date: 31 October 1874
• Citation: McQuie v. Peay, 58 Mo. 56 (Mo. 1874)
• Parties: WILLIAM A. MCQUIE, et al., Respondents, v. GEORGE W. PEAY, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 56

WILLIAM A. MCQUIE, et al., Respondents,

v.GEORGE W. PEAY, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Pike Circuit Court.

Fagg, Dyer & Biggs, for Appellants, relied on Drury vs. Foster, 2 Wall., 24.E. Robinson, for Respondents.

I. The execution of the deed of trust from Matilda and George W. Peay and Cyrus W. Williams and wife, although the name of the trustee was omitted, created an equitable mortgage, and a court of equity will treat it as such and subject the land to the payment of the notes. (Davis vs. Clay, 2 Mo., 161; McClurg vs. Phillips, 49 Mo., 315; Burnside vs. Wayman, Id., 356; Abbott vs. Godfrey's heirs, 1 Mich., 178; 3 Pow. Mort., p. 1049; 7 Ohio, 68; 10 Ohio, 325; Daggett vs. Rankin, 31 Cal., 321; Racouillot vs. Sausevain, 32 Cal., 376.)

II. The real estate was her separate property, and she could bind it by any instrument showing her intention to charge her separate estate. (Coats vs. Robinson, 10 Mo., 757; Whitesides vs. Cannon, 23 Mo., 457; Claflin vs. Van Wagoner, 32 Mo., 252; Schafroth, Adm'r, vs. Ambs, 46 Mo., 114; Kimm vs. Weippert, Id., 532; Lincoln vs. Rowe, 51 Mo., 571.)

WAGNER, Judge, delivered the opinion of the court.

The record discloses the following facts: On the 22d day of November, 1869, George W. Peay and Cyrus W. Williams, two of the defendants in this suit, borrowed of Wm. A. McQuie, one of the plaintiffs, the sum of twelve hundred dollars, and executed their note therefor. On the same day they borrowed a like sum of Mary C. Foley, and executed their note for the same. At that time Matilda Peay, wife of Geo. W. Peay, owned and possessed as her separate property a tract of land adjoining Bowling Green, containing twenty acres. To secure the payment of these notes, Matilda Peay and Geo. W., her husband, undertook to execute a deed of trust on the twenty acre tract of land, and Cyrus W. Williams and wife joined in the same instrument, undertaking to execute a deed of trust on certain lands lying in another county.

The deed of trust was defective in the omission to insert the name of any person as trustee. In all other respects it was in the usual form of a deed of trust, including the names of the grantors and the beneficiaries, reciting the fact that the land was conveyed in trust to secure the payment of the notes, and providing for a sale in case of default in the payment, etc.

After the execution of the notes and deed, Mary C. Foley assigned and transferred her note to Moses Hendricks, one of the plaintiffs herein. Subsequently Matilda Peay died, leaving as her heirs the defendants in this case, to whom the twenty acre tract of land descended.

Peay and Williams having failed to pay the notes, plaintiffs brought this suit in the nature of a bill in equity to have the land subjected to the payment of the debts. The Court rendered a special decree subjecting the land to the satisfaction of the notes, and awarded a special execution.

We entertain no doubt in regard to the correctness of the decision below. Although the neglect or omission to insert the name of some person as a trustee rendered the instrument as a trust deed ineffective, still it does not follow by any means that it was thereby wholly void. It still remained as a valid security for the satisfaction of the debt, and could be enforced as such. The only difference was that there was no person in existence to carry out the provisions of the trust and it was necessary for the beneficiaries to resort to a proceeding in equity to obtain redress. To enable one to sell under a deed of trust, or to obtain a general judgment of foreclosure, the mortgage or the deed of trust must be regular, but if it be irregular, as by the omission of any requisite to a complete instrument, still it will be regarded as an equitable mortgage and held to create a lien, a trust for the benefit of the creditor, and may be enforced in equity. (Davis vs. Clay, 2 Mo., 161; McClurg vs. Phillips, 49 Mo., 315.)

The doctrine has long been settled, that in addition to the actual, conditional conveyance of land, which constitutes a legal mortgage, courts of equity recognize certain other liens arising from the implied agreement of the parties, or the justice of the case, but not depending upon any express transfer of the title. These are termed equitable mortgages, and in general an agreement in writing to give a mortgage, a mortgage defectively executed, or an imperfect attempt to create a mortgage or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien on the property so mortgaged. (1 Hill Mortg., 4 Ed., 648; Racouillot vs. Sausevain, 32 Cal., 375.)

A similar question to the one we are now considering was presented in the case of Burnside vs. Wayman, (49 Mo., 356). There the trust deed was made and no trustee was selected, but a blank was left in which to insert the name of some suitable person, and the grantor gave the cestui que trust authority to appoint a trustee and fill up the blank. The cestui que trust neglected to make any appointment, and assigned the note and deed to the plaintiff. The plaintiff then brought his suit to have the deed treated as a mortgage, and the property subjected to the payment of the debt. The Circuit Court granted the relief and we affirmed the decision.

In all cases where the wife...