Price v. Blankenship

• Decision Date: 24 May 1898
• Parties: PRICE et al. v. BLANKENSHIP.
• Court: Missouri Supreme Court

45 S.W. 1123

144 Mo. 203

PRICE et al. v. BLANKENSHIP.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

SUPREME COURT — TITLE TO REALTY — SALE BY MORTGAGEE — ACTION FOR SURPLUS.

1. Const. art. 6, § 12, provides that writs of error may issue from the supreme court to the St. Louis court of appeals in cases involving the titles to real estate. Held, in an action by the heirs of a mortgagor against a mortgagee to recover the difference between the selling price of the mortgaged property sold by the mortgagee under a power of sale in the mortgage and the amount due on the mortgage, that the title to real estate was not involved, although the defendant set up that the sale was invalid, and the equity of redemption still existed in the plaintiffs.

2. The minor heirs of a mortgagor may sue a mortgagee to recover the difference between the price for which the mortgagee sold the mortgaged property under a power of sale in the mortgage and the amount due on the mortgage, although the sale was invalid, and might have been treated by the heirs as an assignment of the mortgage.

3. Where minor heirs of a mortgagor recover from a mortgagee the difference between the price for which the mortgagee sold the mortgaged property under a power of sale in the mortgage and the amount due on the mortgage, if they elect on attaining their majority to set aside the sale, it being invalid, they must first refund the money received from the mortgagee.

Case certified from St. Louis court of appeals.

Action by Joseph H. Price and another against L. J. Blankenship. From a judgment for plaintiffs, defendant appealed to the St. Louis court of appeals, where the judgment was affirmed, and the case certified to the supreme court. Affirmed.

Pepper & Steele, N. Gibbs, and T. M. Allen, for appellant. Cloud & Davies, for respondents.

MARSHALL, J.

Joseph H. Price executed a mortgage, with power of sale, on certain land in Barry county, to defendant, to secure a debt of $250 and interest. Price died, leaving a widow and children, some by a prior marriage, and the plaintiffs, who are minors. Defendant sold the property under the mortgage for $1,400, but only required the purchaser to pay $300, just enough to satisfy his mortgage debt, interest, and costs, and then made a deed to the purchaser, who entered into the possession of the land. The mortgage required 30 days' notice of sale to be given, but defendant gave only 24. The minor heirs, by their next friend, sued defendant to recover $1,100, the balance of the price the land brought at the foreclosure sale. Defendant set up that he had only received $262; that the notice of sale was insufficient, and therefore the effect of the sale was simply to transfer the mortgage to the purchaser; and that the equity of redemption still remained to the plaintiffs. The plaintiffs obtained judgment in the circuit court for $1,364. Defendant appealed to the St. Louis court of appeals. That court affirmed the judgment below, Judge Biggs dissenting, and the cause was certified to this court, because of the opinion of Judge Biggs that the title to real estate is involved in this action, as construed by this court in Gray v. Worst, 129 Mo. 122, and that the decision of the St. Louis court of appeals is in conflict with the decision of this court in Kerr v. Bell, 44 Mo. 120.

1. The first question for our determination, therefore, is whether the title to real estate is involved in this action, so as to confer jurisdiction upon this court under section 12, art. 6, Const. 1875. The decision in Gray v. Worst, 129 Mo. 122, 31 S. W. 585, undoubtedly affords room for the opinion of Judge Biggs in this case. That case was an action for the conversion of a crop which had been severed from the realty. It sounded in damages, and could only be satisfied by the payment of money. Yet it was held that it involved the title to real estate. That case was decided on the 7th of June, 1895. It did not long remain an authority in this state, for on the 25th of June, 1895, the case of Hilton v. City of St. Louis, 129 Mo. 389, 31 S. W. 771, was decided. That case was a controversy between two claimants to a fund paid into court in a condemnation proceeding; that is, two parties claimed the res resulting from a condemnation of land. Macfarlane, J., delivering the opinion of the court, said: "The constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must, in some way, be affected by the judgment to be rendered on the entire case, as made by the pleadings and evidence. This seems to be the view this court has uniformly taken. Bobb v. Wolff, 105 Mo. 52, 16 S. W. 835; Blondeau v. Sheridan, 103 Mo. 134, 15 S. W. 530; Bailey v. Winn, 113 Mo. 161, 20 S. W. 21; State v. Rombauer, 124 Mo. 598, 28 N. W. 75." Gray v. Worst, supra, was not referred to in Hilton v. St. Louis, supra, notwithstanding the principles decided in the two cases are antipodes. But it is clear that the decision in Gray v. Worst was in conflict with the prior adjudications of this court, which were not referred to or overruled in Gray's Case. The matter, however, did not rest here. On June 8, 1897, Fischer v. Johnson, 139 Mo. 433, 41 S. W. 203, was decided. It was an action in replevin for a crop which had been severed from the land, and it was claimed that, as the ownership to the land determined who had the right to the crop grown of the land, the title to real estate was involved. Brace, J., speaking for the court in banc, quoted the language of Macfarlane, J., in Hilton v. City of St. Louis, 129 Mo. 391, 31 S. W. 771, and added: "To this list [the cases cited by Macfarlane, J.] might be added the earlier cases of Corrigan v. Morris, 97 Mo. 174, 10 S. W. 880, Dunn v. Miller, 96 Mo. 324, 9 S. W. 640, State v. Court of Appeals, 67 Mo. 199, and perhaps others, as well as the recent case of Paving Co. v. Hezel, 138 Mo. 228, 39 S. W. 781. The action of replevin lies only for the recovery of `specific personal property.' Rev. St. 1889, § 7479. It is well settled that, while title to real estate may be inquired into in such action for the purpose of determining the title to personal chattels, it cannot be made the means of determining the title to real estate. Wells, Repl. §§ 58, 79, et seq. A crop severed from the land is a personal chattel, and a proper subject of the action of replevin; but, while the title to it may depend on the ownership of the land, the title of the land is not within the issues to be tried, and the judgment thereon can in no way affect such title. * * * Consequently, a title to real estate is not involved in this case, within the meaning of the constitution (article 6, § 12). * * * This conclusion is not in harmony with the ruling in the first paragraph of the opinion in Gray v. Worst, 129 Mo. 122, 31 S. W. 585, which is accordingly overruled." All the judges concurred in this opinion, except the writer of the opinion in Gray's Case, who filed a dissenting opinion. Heman v. Wade (Mo. Sup.) 43 S. W. 162, decided December 7, 1897, was a suit in equity to enjoin waste pending an ejectment suit. Macfarlane, J., said: "Nor do we think the title to real estate is so involved as to give this...