Phelps v. Relfe

• Court: Missouri Supreme Court
• Writing for the Court: RYLAND
• Citation: Phelps v. Relfe, 20 Mo. 479 (Mo. 1855)
• Decision Date: 31 March 1855
• Parties: PHELPS, Appellant, v. RELFE, Respondent.

20 Mo. 479

PHELPS, Appellant,

v.RELFE, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. P. gave a note, with R. & E. as his sureties, to whom he executed a mortgage on real estate for their idemnity. R. & E. subsequently paid the note in equal proportions. E. afterwards purchased P.'s equity of redemption in the real estate under execution. There was an understanding between R. & E. that the purchase was on their joint account, but the deed was made to E. and it did not appear that R. was in a situation to enforce the agreement. In a suit by P. against R. for the statutory penalties for refusing to enter satisfaction of the mortgage, and to compel him to deliver up the note in his possession to be canceled, held, that it could not be maintained.

Appeal from Washington Circuit Court.

This was an action brought to recover the statutory penalty for a refusal to enter satisfaction of a mortgage, and to compel the defendant to deliver up a note to be canceled. The facts are stated in the opinion of the court.

M. Frissell, for appellant.

The purchase under execution by Evans & Relfe of Phelps' equity of redemption extinguished the mortgage and with it the mortgage debt. (1 Hilliard on Mortgages, 329, § 61, 330, § 64. 2 Id. p. 1. and 2.)

J. W. Noell, for respondent.

I. As the mortgagor had no interest remaining in the mortgaged property, he could not be aggrieved by a failure to enter satisfaction. (R. C. 1835 and 1845, tit. “Mortgages.”)

II. The facts shown do not constitute a satisfaction of the mortgage.

RYLAND, Judge, delivered the opinion of the court.

Some time in February, in the year eighteen hundred and thirty-four, the plaintiff, Timothy Phelps, borrowed of Washington county the sum of four hundred dollars, for the payment of which he executed his note, with James H. Relfe and James C. Johnson his sureties. At the same time, the plaintiff, in order to secure his said sureties, executed to them a mortgage on a certain tract of land situated in the county of Perry, containing two hundred and thirty-eight acres and nineteen hundredths, originally confirmed to Noel Hornback, and numbered on the official plat 377. This mortgage was shortly after its date duly recorded in said county of Perry. James S. Evans was subsequently substituted for said James C. Johnson. In November, 1839, an execution was issued in favor of Austin H. Hawkins against the plaintiff, Phelps, and was by the sheriff of Perry county levied upon the land above described; and on the 23d of March, 1840, the said sheriff sold all the right, title and interest of the plaintiff in and to said land, and said James S. Evans, who had been substituted in place of the surety, Johnson, became the purchaser thereof. This purchase by Evans was with an understanding on the part of Relfe to be on their joint account. The deed was made to Evans alone. Relfe and Evans afterwards disagreeing in regard to the manner and terms of the purchase, Evans has never made Relfe any title to any part of the land, but retains the whole himself. The defendant, Relfe, and the said Evans have each paid one-half of the amount due on the said note to the county of Washington. The defendant, Relfe, has never received any thing for the money which he paid to Washington county as surety for Phelps, unless the above purchase of Phelps' land by Evans is held to be such. The land, at the time of the purchase thereof by Evans, was supposed to be worth from eight to ten dollars per acre; but after the flood in the year eighteen hundred and forty-four, and down to the trial of this suit was worth not more than two dollars and fifty cents per acre. On or about the 30th day of ...