Munson v. Ensor
| Decision Date | 20 February 1888 |
| Citation | 7 S.W. 108,94 Mo. 504 |
| Parties | Munson v. Ensor et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. H. S. Kelley, Judge.
Reversed.
David Rea and Thomas H. Ensor for appellants.
(1) Appellant is a bona-fide innocent purchaser for value of the real estate sought to be redeemed, without any notice of any equity of respondent therein, and should hold the title thereto as against respondent in this action. The law is too well settled on this point to require citation of numerous authorities. Story's Equity (7 Ed.) sec. 409; Digby v. Jones, 67 Mo. 104; Jones v. Savings Inst., 67 Mo. 109. (2) Appellant acquired title by a warranty deed. His grantor held under quit-claim deeds. The law is that a purchaser from a grantee in a quit-claim deed, by deed containing covenants of warranty, who has paid a valuable consideration therefor, need not inquire for equities, but is to be regarded as a bona-fide purchaser without notice. Winkler v. Miller, 6 N.W. 698. The same construction is tacitly admitted by court and counsel in Corbin v Sullivan, 47 Ind. 356. (3) Quit-claim deeds containing the words "remise, release, and forever quit-claim" are sufficient to convey title to land. Anglade v. St Avit, 67 Mo. 434; Wilson v. Albert, 89 Mo. 537. (4) Respondent is estopped from showing that the deed of trust and note mentioned therein were given for any other purpose than therein recited. Durette v. Briggs, 47 Mo. 356; Dickson v. Anderson, 9 Mo. 156; Hasenritter v. Kirschhoffer, 79 Mo. 239; Stoutimore v. Clark, 70 Mo. 471; 1 Greenl. on Evid. (13 Ed.) secs. 22, 23, 24, 26, and notes; Herman on Estoppel sec. 333; Bigelow on Estoppel (2 Ed.) 266, 267, 268, and note 1; 3 Wash. on Real Prop. (3 Ed.) chap. 2, sec. 6, paragraphs 25, 26 and 27.
William Ellison for respondent.
(1) The sale under the deed of trust executed by respondent to the bail was fraudulent and void, and did not foreclose his equity of redemption, because (69 Mo. 52) (a) The payees in the note (the bail) did not request the trustee to sell, and by the terms of the trust deed, he had no power to sell until requested by them. (b) The trustee in the deed of trust did not advertise the property for sale. He did not know it was advertised. He had no voice in appointing the day of sale, or in determining what the notices of sale should contain, or when, or where they should be posted. Bales v. Perry, 51 Mo. 449; 69 Mo. 426; 50 Mo. 22; 2 Jones on Mort. (3 Ed.) sec. 1862. (c) The trustee had no right to sell the property until the bail should be compelled to pay out something by reason of their suretyship. 1 Jones on Mort. (3 Ed.) secs. 64, 379, 384; 2 Jones on Mort., secs. 1187, 1188, 1189, 1489; 81 Mo. 532; Borum v. Reed, 73 Mo. 461: 69 Mo. 52. Parol evidence was admissible to connect the deed of trust and the defeasance, and to show that the latter was lost. 1 Jones on Mort. (3 Ed.) secs. 248, 323, 324; 23 Ill. 648. (d) The nature of the relation between the bail and respondent was that of confidence and trust, and it was unlawful for them to purchase the property for their own benefit. Thurston v. Prentis, 1 Mich. 193; Hoyt v. Martense, 16 N.Y. 231; 1 Jones on Mort., sec. 332; Perry on Trusts, secs. 197, 206, 210; 58 Mo. 537. (2) The respondent is not precluded from insisting on his equities in the premises, and redeeming the property by reason of the subsequent transfers to Maggie J. and her father-in-law, Joseph Ensor. 1 Perry on Trusts (2 Ed.) sec. 298; Witham v. Brooner, 63 Ill. 344; Kay v. Scates, 78 Am. Dec. 399, and note on p. 406; 2 Story's Eq. Jur. (6 Ed.) sec. 1502; Nelson v. Wishon, 68 Mo. 387; Bone v. Childs, 10 Pet. 177; Staffel v. Schroder, 62 Mo. 147; Mann v. Best, 62 Mo. 491; Mason v. Black, 87 Mo. 329; Tydings v. Pitcher, 82 Mo. 379; 62 Mo. 473; 84 Mo. 352.
OPINION
This was a suit to redeem a house and lot in Quitman, Nodaway county, from a sale under a deed of trust. The plaintiff, Munson, stood indicted for a felonious assault, and Mr. Hilgerth and five other persons were the sureties on a recognizance for his appearance on the first Monday of March, 1881, in the circuit court of that county. On the twenty-sixth of November, 1880, plaintiff made the deed of trust on the property in question to Montgomery, as trustee, to secure a note of eighteen hundred dollars, payable to the sureties on or before the first of March, 1881, the purpose being to save harmless the sureties. Plaintiff did not appear, and on the seventh of March, 1881, a forfeiture of the recognizance was entered; and on the next day but one, the property was advertised for sale under the deed of trust, and was sold and bid in, at three hundred dollars, on the ninth of April, 1881, by Mr. Graves, who took a deed to himself in trust for the sureties. Graves by two quit-claim deeds, one dated in July, 1881, and the other in January, 1882, conveyed the property to Maggie J. Ensor for four hundred dollars; she and her husband, Thomas Ensor, conveyed this and another parcel of land to Joseph Ensor, father of Thomas Ensor, by warranty deed, dated the thirty-first of December, 1881, for the consideration of fifteen hundred dollars. After the date of the trustee's sale, and before the date of either deed to Mrs. Ensor, the sureties surrendered Munson to the sheriff. The forfeiture of the recognizance was then set aside upon the payment of the costs by the sureties, which amounted to $ 317.45. Plaintiff then procured other bail, was thereafter convicted, and after serving out his three years term in the penitentiary, filed this bill.
1. At the time Munson made the deed of trust, some of the sureties then present gave him a writing signed by them, which was never recorded and appears to have been lost. There is a conflict in the evidence as to its contents; but the weight of the evidence is, that these sureties thereby agreed that a sale under the deed of trust should be made when and only after they had sustained a loss, and then to reimburse them for moneys actually paid out on account of the recognizance. This was the only consideration for the note. This agreement and the deed of trust were parts of one and the same transaction, and are to be so treated. At the time of the trustee's sale, the sureties had paid out nothing on account of their suretyship. The sale was, therefore, premature, for the contingency had not arisen upon which the trustee had a right to sell the property. As between the plaintiff and the sureties and Graves, who held the title for them, the sale would be set aside, and the plaintiff allowed to redeem.
But a different question arises as against the appellant, Jacob Ensor. When Graves sold the property to Mrs. Ensor, it was advertised and about to be sold under a prior deed of trust. The sureties had then paid for Munson $ 317.45, and Mr. Baird, one of them, and the business partner of Thomas Ensor, acted as the agent of Mrs. Ensor in making the purchase, procuring a loan for her therefor, and paying off the incumbrance, subject to which she purchased the property. Baird says he was not present when the deed of trust was executed, did not sign the agreement made by some of the sureties, and had no knowledge of it. It is quite clear Mrs. Ensor had no knowledge of that or any such agreement. Besides, it is shown beyond all doubt that Joseph Ensor purchased the property in good faith, paid for it in the discharge of mercantile debts owing by the son, and had no notice of any of the prior transactions, save that imparted by the recorded deeds.
Mrs Ensor acquired the property by quit-claim deeds, and it has been often stated, as a general proposition, that one who acquires a title by a quit-claim deed is not to be regarded as a bona-fide purchaser without notice. The general proposition is very much modified by our recording act. Section 693, Revised Statutes, provides: "No such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the recorder for record." The words, "such instrument," refer to the preceding sections, and include "every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity." These instruments must also be acknowledged. The object of the statute is well stated in McClurg v. Phillips, 57 Mo. 214, where it is said: ...
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