Miles v. Davis

• Decision Date: 31 March 1854
• Citation: 19 Mo. 408
• Parties: MILES, Plaintiff in Error, v. DAVIS & TAYLOR, Defendants in Error.
• Court: Missouri Supreme Court

19 Mo. 408

MILES, Plaintiff in Error,

v.DAVIS & TAYLOR, Defendants in Error.

Supreme Court of Missouri.

March Term, 1854.

1. The refusal of a court to give an instruction asked by a party is not equivalent to the assertion of the converse proposition of law.

2. Where property was conveyed to A., with a clause of defeasance if the grantor should within five years, pay a debt due from him to B., and A., treating the conveyance as a mortgage, obtained judgment of foreclosure upon the cognovit of the grantor in a suit to which B. was not a party, it was held that the title of the purchaser at a sale under the judgment could not be disputed in a collateral proceeding.

3. Where persons are made trustees for the payment of debts or legacies, the rights of the creditors or legatees will be bound by a judgment fairly obtained in a proceeding in which the trustees are parties, although the creditors or legatees are not before the court.

4. An officer executing process may amend his return by leave of court, after the expiration of his official term.

Error to Lewis Circuit Court.

This was an action of ejectment begun in Marion county and taken by change of venue to the Circuit Court of Lewis county. Both parties claimed title under Ezra S. Ely, as follows:

On the 5th of January, 1838, Ezra S. Ely, of Philadelphia, being largely indebted to his wards, Mary Ann Carswell (the wife of plaintiff) and the children of one Brady, conveyed the property in controversy, together with other real and personal property, to Margaret Carswell and Samuel McClellan.

This deed recited the indebtedness of the grantor to his wards, described the property conveyed, and then stated that the conveyance was subject to the condition that, if the grantor or his legal representatives should, within five years, pay the debts due to his wards, then the deed to be void.

On the 23d of August, 1843, Margaret Carswell and McClellan, treating the conveyance to them as a mortgage, instituted a proceeding to foreclose the same. Ely confessed the petition, judgment was entered, a special fieri facias issued against the mortgaged property, and the same was sold by the sheriff. At the sale, Carswell and McClellan became the purchasers of much of the property. The land in dispute was bought by Glover and Wells. The original return upon the execution failed to show the purchase by Wells and Glover, and on the 15th of March, 1848, after the expiration of his term of office, the sheriff was allowed to amend his return, so as to show the sale to them at the price of $12. On the 2d of August, 1848, the sheriff who made the sale executed a deed to Glover & Wells. Wells afterwards conveyed to Glover, who conveyed to the defendant, Taylor. This was one branch of the defendants' title.

Another branch was as follows: On the 28th of May, 1844, Ely addressed a letter to the sheriff of Marion county, requesting him, in consideration of the sum bid by Glover & Wells at the sale, receipt of which was acknowledged, “as well as for divers other good considerations,” to make a deed to them. This letter concluded in the form of a quit-claim deed to Glover & Wells of all the right and title of Ely and of Carswell & McClellan to the land in dispute. It was signed and sealed by Ely for himself, and as attorney in fact of Carswell & McClellan. Powers of attorney from Carswell & McClellan to Ely were read in evidence, but there was a question whether their terms were broad enough to authorize Ely to convey the property held by C. & M. in trust.

The plaintiff's title was as follows: On the 27th of March, 1850, Margaret Carswell and Samuel McClellan, pursuant to a decree of the Philadelphia Court of Common Pleas, conveyed to the plaintiff, in trust for the trustees of his wife, all the right, title and interest in the land in dispute vested in them by the conveyance of January 5, 1838. which they styled a mortgage, together with all their title to the property purchased by them at the sheriff's sale under the foreclosure.

On behalf of the defendants, it was proved that Glover & Wells contracted with Ely for the purchase of the land in controversy at the price of $3,000, which was paid by them. This was before the letter of Ely to the sheriff.

Some evidence was offered by the defendants, with a view to show that the conveyance of January 5, 1838, was made by Ely to hinder, delay and defraud his creditors; and aside from any evidence, the defendants claimed that this deed was fraudulent and void upon its face. If it was not fraudulent, then they claimed that they had a good title under the judgment of foreclosure, the sale and the sheriff's deed.

At the close of the evidence, the plaintiff asked six instructions, all of which, except two, bearing upon the question of fraud, were refused. The sixth instruction refused asserted that the judgment of foreclosure, and the sale and sheriff's deed under it, passed no title. The plaintiff submitted to a nonsuit, and sued out a writ of error. The cause was submitted on briefs.

Pratt & Redd, with whom R. M. Field was associated as counsel, after arguing the question of fraud, insisted that the judgment and proceedings in the foreclosure suit, under which defendants claim title, were void, because the court had no jurisdiction. The act of 1835 gives to a court of law jurisdiction to foreclose a mortgage, but gives no jurisdiction over trusts. The deed of January 5, 1838, was a deed of trust and not a mortgage. Lewin on Trust, (22 Law Lib. p. 9, 12, 87.) 1 Madd. Ch. 445, 451. Powell on Mort. p. 4. 1 Black. Comm. 126. 3 Bacon's Ab. tit. “Mortgage,” A. p. 612. 1 Cruise on Real Property, tit. “Mortgage,” p 78. 1 and 2 Cruise's Dig. tit. “Mortgage.” This deed cannot be a mortgage, because the intent of the grantor is clear that persons other than the grantees shall receive the whole benefit of the grant. The interests of the grantor and grantees in a deed of trust, are different from the interests of the mortgagor and mortgagee. 1 Atk. 604-5. 1 Vernon, 3, 412. Lewin on Trusts (22 Law Lib. 87). 4 Kent's Comm. 311, note A. A deed of trust differs from a mortgage also, in respect to the remedies given to the creditor. A judgment in a statutory proceeding for foreclosure of a mortgage is of a three-fold character: 1st, for the amount of the debt; 2d, for the sale of the mortgaged property, and 3d, an award of a general execution to satisfy the balance remaining unpaid, after the sale of the mortgaged property. Carswell & McClellan could not get judgment for the mortgage debt, because nothing was owing to them, nor could they get an award of execution to satisfy the debt. The clause of defeasance in the deed does not make it a mortgage, because the legal effect of the deed would have been the same without that clause.

Glover & Richardson, for defendants in error, among other points argued the following:

1. The proceedings in the suit for foreclosure, with the sheriff's deed, under which defendants claim, constitute a good title as against Carswell & McClellan,...