Reddick v. Gressman

• Decision Date: 29 February 1872
• Citation: 49 Mo. 389
• Parties: JAMES M. REDDICK, Plaintiff in Error, v. WILLIAM GRESSMAN, Defendant in Error.
• Court: Missouri Supreme Court

49 Mo. 389

JAMES M. REDDICK, Plaintiff in Error,

v.WILLIAM GRESSMAN, Defendant in Error.

Supreme Court of Missouri.

February Term, 1872.

Error to Andrew Circuit Court.

H. S. Kelley, for plaintiff in error.

Upon condition broken, the mortgagee may maintain ejectment for the possession of the mortgaged premises. (Tyler Eject. 169; Walcop et al. v. McKinney's Heirs, 10 Mo. 229; Sutton v. Mason, 38 Mo. 120; 2 Washb. Real Prop. 226.) When a mortgage is given to secure the payment when due of several promissory notes falling due at different times, it may be foreclosed upon default in payment of the note first due. (Hunt et al. v. Harding, 11 Ind. 245; The State Bank v. Tweedy, 8 Blackf. 447; Andrew v. Jones, 3 Blackf. 440; Smith et al. v. Shuler et al., 12 Serg. & R. 240; 9 Mass. 258; 7 Mo. 448.)

Strong & Chandler, and Sherman, for defendant in error.

I. A mortgagee taking a conveyance with a power of sale is a trustee (Sugd. Vend. 890), and cannot without, and often can not with, the mortgagor's full knowledge and consent, become the purchaser of the property of the mortgagor so held by him. (Davoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How 503; Gardner v. Ogden, 22 N. Y. 327; Thornton v. Irwin, 43 Mo. 153.) And if the mortgagee cannot, under a power of sale vested in him by the mortgage, acquire title as against the mortgagor, then at such sale the pretended foreclosure is a nullity as to the mortgagor. Hence the fee still remains in the mortgagor, and ejectment affirming title in the mortgagee cannot be maintained. (Van Slyke v. Shelden, 9 Barb. 278.)

II. The power of sale under the deed could be executed only in the event that “the sum of money specified in said notes and all the interest thereon” which may be due according to the tenor and effect of said notes, or some part thereof, remained unpaid after all of said sum became due and payable. By the very terms of said mortgage, the defendant in error (the mortgagor) could only avoid said mortgage and render it null by paying the sum of said notes and interest. The mortgagor was under no obligation to pay, nor was the mortgagee under any obligation to receive, the sum of said notes and interest thereon, until the said sum was all due and payable; and said sum was not so due and payable until all the notes matured. And no title passes under a power of sale contained in a mortgage unless the conditions thereof are strictly construed. (4 Allen, Mass., 516; Roarty v. Mitchell, 7 Gray, 243; 14 Mo. 345; 36 Mo. 523; Richards v. Holmes, 18 How. 143.) In cases holding that a sale under a power given in a mortgage for an installment of a debt secured thereby, is valid and binding though the whole debt is not then due, there will almost invariably be found a clause or condition in the mortgage expressly authorizing a sale in case the debt, or any installment thereof, or the interest thereon, remains unpaid after such installment or such interest becomes due and payable, in order to pay off and satisfy such payable installment or interest. In a few cases also it will appear that such sales are expressly authorized by the statutes of the States where such decisions are rendered.

WAGNER, Judge, delivered the opinion of the court.

Substantially the case is this: Plaintiff sold to defendant a certain tract of land and executed a conveyance therefor; the purchase-money was due in installments, and a mortgage was made on the same land to secure the payment thereof. The mortgage contained a power of sale authorizing the creditor, or the sheriff at his request, to sell the premises to satisfy the debt.

The main point in this case rests for its determination upon the construction to be given to the condition in the mortgage, and it is as follows: “If the said Gressman, his executor or administrator, shall pay the sum of money specified in said notes and all the interest that may be due thereon, according to the tenor and effect of said notes, the conveyance shall be void; but if the said notes should not be well and truly paid when the same become due and payable according to the tenor and effect thereof, then this deed shall remain in full force, and the said Reddick or his legal representatives, or, at the request of the legal holder of said notes, the sheriff may proceed to sell the property,” etc.

The first installments were not paid when they became due, and the plaintiff, still holding the notes, requested the sheriff to sell the property, which he did, and at the sale the plaintiff purchased the land and received a deed for the same, and then brought this action in ejectment to recover possession. Upon the trial the court excluded the sheriff's deed upon the ground that he possessed no authority to sell; and in consequence of certain other rulings made, the plaintiff took a nonsuit with leave to move to set it aside, and after an unavailing motion to set the nonsuit aside, this writ of error was prosecuted.

To sustain the judgment of the court below, it is insisted that, as the plaintiff was a mortgagee with power to sell in himself, he was incompetent to buy and take as a purchaser, although the sale was made by the...