Pickett v. Jones

• Decision Date: 31 October 1876
• Citation: 63 Mo. 195
• Parties: JOHN M. PICKETT, Appellant, v. CHAS. E. JONES, Respondent.
• Court: Missouri Supreme Court

63 Mo. 195

JOHN M. PICKETT, Appellant,

v.CHAS. E. JONES, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jasper Circuit Court.

Walser & Cunningham, for Appellant.

The mortgage deed of H. James to Sparlin Day and Stuart, conveyed to them an estate as mortgagees, coupled with a power. And the effect of their deed to Dustin was to convey the estate and also the power to him, subject only to the right of redemption; and under that power Dustin had the legal right to convey the property itself without reference to the power, (as such power was coupled with an interest) to plaintiff. (Pease vs. Pilot Knob Iron Co., 49 Mo. 127.)

Powers given to a mortgagee to sell on default fall under the powers appendant or annexed to the estate; they are powers coupled with an interest, and are irrevocable and are deemed part of the mortgage security, and vest in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid; and such power of sale may be assigned to another person by a conveyance of all the interest of the donee of the power, and may be exercised by such assignee. (4 Kent, 147; 2 Washb. Real Prop., 324.)

The transfer of the notes secured by the mortgage carries with them the security as an incident. (Thayer vs. Campbell, 9 Mo. 280; Keys vs. Woods, 21 Vt., 331; Chappell vs. Allen, 38 Mo. 213; Croft vs. Bunster, 9 Wis. 503; Fisher vs. Otis, 3 Chandler, 83.)

Plaintiff as assignee of the mortgagee could maintain ejectment after condition broken. (Reddick vs. Gressman, 49 Mo. 389; 4 Kent, 147; 2 Washb. 324.)

Lay & Belch, with Thomas, for Respondent.

I. It has been held in this State that a trustee cannot transfer or delegate his authority to another. (Whittlesey vs. Hughes, 39 Mo. 13.) The mortgagee, it is true, takes the legal title coupled with an interest, but he is at the same time a trustee, as to the surplus above what is required to pay his debt, and as such occupies a position of confidence and trust, and to substitute another in his stead is to defeat the object and intent of the mortgagor. It may be conceded that there are authorities to the effect that in certain cases of powers coupled with an interest, an assignment passes the powers so as to enable the assignee to execute it. But in this case the deed expressly limits the execution of the power to the mortgagees, their executors and administrators.

II. And the statute limits the power of sale to the mortgagee and his personal representatives. (2 Wagn. Stat. p. 956, § 13; Broom's Leg. Max. s. p. 516; Dwar. on Con. of Statutes, t. p. 605.)

III. It is insisted here for the first time, that although the pretended sale by the assignee Dustin was void, yet the plaintiff as assignee of the notes and mortgage after condition broken, is entitled to recover in ejectment.

The sale of Dustin was made as assignee under a pretended power, and, being void, passed no title and did not operate as an assignment of the notes or mortgage.

But even if the pretended sale be construed as an assignment of Dustin's interest, it passed no legal estate in the property. (Potter vs. McDowell, 43 Mo. 93.)

Both parties claim under the Joplin Mining and Smelting Co., and it is admitted by the pleadings that the defendant holds a deed from said Co., and has the legal title.

HOUGH, Judge, delivered the opinion of the court.

This was a suit in ejectment to recover the possession of a lot in the city of Joplin, in Jasper county.

It appears from the record that on the 23d day of January, 1872, the Joplin Mining and Smelting Company sold to one Sparlin the lot in controversy, and having received a part only of the purchase money, executed to him an obligation in writing for a conveyance upon payment of the remainder.

Sparlin made improvements upon the lot, and upon the 26th day of August, 1872, sold the premises to H. James for the sum of $600, and duly assigned to him the contract for title. On the same day James executed and delivered to Sparlin, Day and Smart a mortgage of the same premises, with power of sale, to secure the payment of three notes amounting in the aggregate to $700, and due respectively in three, six and nine months from said 26th day of August, which mortgage was duly recorded on the succeeding day.

On the 30th day of September, 1872, Sparlin, Day and Smart formally assigned this mortgage to H. Dustin. Nothing was said in the assignment about the transfer of the notes which the mortgage was intended to secure, and indeed it nowhere appears in the record that they were transferred to Dustin, except by way of recital in a notice of sale under the mortgage, which was read in evidence.

On the 17th day of October, 1872, James assigned to the defendant (Jones) the contract for title from the Joplin Mining and Smelting Company, and delivered to him possession of the lot. It may be well to remark in this connection, that in addition to the count in ejectment, the petition in this case also contained a count in equity, from which it appears that on or about the 20th day of November, 1872, the defendant paid to the Joplin Mining and Smelting Company the balance of the purchase money due on said lot under the contract of sale to Sparlin, and received from said company, as assignee of said contract, a deed for the premises.

Default having been made in the payment of the notes, on the 3d day of January, 1873, after the requisite notice, Dustin, as assignee of the power of sale contained in the mortgage, sold said lot to the plaintiff, and executed and delivered to him a deed therefor. Plaintiff thereupon instituted the present suit.

At the trial the court excluded the deed from Dustin to the plaintiff...