Priest v. City of St. Louis

• Decision Date: 31 March 1891
• Citation: 15 S.W. 989,103 Mo. 657
• Parties: PRIEST v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

15 S.W. 989

103 Mo. 657

PRIEST v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

ADVERSE POSSESSION — VOID FORECLOSURE.

Where it appeared that the foreclosure of a deed of trust executed by plaintiff to secure notes payable to defendant was void, because of non-compliance with the terms of the power, and that the notes were surrendered marked "Canceled by sale," and that the property passed into defendant's possession, such possession, the deed of trust being still in force, was sufficient to raise the bar of the statute of limitations, against an action of ejectment by the mortgagor.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

W. H. Clopton and Chester H. Krum, for appellant. L. Bell, for respondent.

MACFARLANE, J.

Ejectment to recover possession of certain lots in the city of St. Louis. Answer, a general denial. The city of St. Louis was the common source of title. Plaintiff introduced in evidence a deed from the city to himself and one John J. Anderson, dated the 4th day of October, 1859. Defendant then introduced a deed from Priest and Anderson conveying the lots to Stephen Hoyt, comptroller of the city of St. Louis, in trust to secure to the city the payment of certain notes therein described, with power in the trustee to sell the lots in default of payment of the notes. The evidence shows that a sale was made under the power contained in the deed of trust on the 15th day of December, 1864. This sale was void on account of non-compliance with the terms of the power. After this supposed sale had been made, the city delivered to plaintiff and Anderson their notes and deed of trust. The notes, when returned, were canceled by the following indorsement: "Canceled by sale, December 15th, 1864. GEO. K. BUDD, Comptroller." The evidence shows that the lots were vacant and unimproved at and from the sale, in 1859, until about January, 1880, when defendant fenced them in, and has continued in the actual possession ever since. The trustee's sale was declared void by this court in April, 1886. 88 Mo. 612. This suit was commenced in May, 1886. From 1865 the property was listed by the assessor as being the property of the defendant, the city of St. Louis. It does not appear from the abstracts of record that any instructions were either given or refused; in fact, the abstract fails to show in whose favor the judgment was rendered, or that any motion for a new trial was ever filed, or that any exceptions...