Sappington v. Oeschli

• Citation: 49 Mo. 244
• Parties: MARY SAPPINGTON, Respondent, v. FREDERICK OESCHLI AND JOHN OESCHLI, Appellants.
• Decision Date: 31 January 1872
• Court: United States State Supreme Court of Missouri

49 Mo. 244

MARY SAPPINGTON, Respondent,

v.FREDERICK OESCHLI AND JOHN OESCHLI, Appellants.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Pettis Circuit Court.

Philips & Vest, for appellants.

I. The action was brought in August, 1868, and the sheriff's deed to plaintiff, on which alone she could assert title, was not made until August, 1869. She was bound to show title before the date of the ouster laid in the petition. (Buxton v. Carter, 11 Mo. 481; Seglar v. Vankeper, 10 Wend. 414.) The doctrine of relation invoked by the plaintiff applies only as between parties and privies, and never as to strangers, which is the case here. (Alexander & Betts v. Merry, 9 Mo. 514, 529; Jackson v. Bard, 4 Johns. 230-34.)

II. Although our registry law provides no time in which a deed shall be filed for record, yet the intendment of the law and the proper construction of the act would require that it should be done in a reasonable time, and under the circumstances of this case eight years was an unreasonable length of time to have withheld this deed of mortgage from record. (Reed v. Austin, 9 Mo. 731; Bryson v. Penix, 18 Mo. 15-16; Cushing v. Hurd, 4 Pick. 257.) Especially must this be the just and necessary construction of this act, where the rights of third parties are to be affected by a long-deferred act of filing; and plaintiff, in the case at bar, is estopped from setting up her pretended mortgage to defeat the just and equitable demands of these creditors. (19 Mo. 204-8; 2 Johns. Ch. 36-45; Mosby v. Garret, 1 J. J. Marsh. 212; Chouteau et al. v. Goddin et al., 39 Mo. 250; 1 Johns. Ch. 344.)

F. P. Wright, for respondent.

A mortgagee may maintain an action of ejectment against the mortgagor and those claiming under him after forfeiture, the legal title being vested in the mortgagee (Walcop v. McKinney, 10 Mo. 229); and the legal title after forfeiture is so effectual as to enable a defendant in ejectment to plead it in bar as an outstanding title, equal to any other, so as to defeat a recovery. (12 Mo. 603.) After forfeiture the mortgagor and those claiming under him are like tenants at will; they hold the possession or receive the rents by the mere tacit agreement or consent of the mortgagee, but the mortgagee may put an end to such tacit agreement when he pleases. The effect of the sheriff's deed to plaintiff was to vest the title in her by relation from the day of sale, which took place July 29, 1868. (Cross v. Wallace, 12 Mo. 145; Alexander & Betts v. Merry, 9 Mo. 145.) The relation back to the time of sale works them no injury. They purchased with knowledge, and after the mortgage was recorded and while the suit for foreclosure was pending.ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment, originally brought by plaintiff against the defendants in the Pettis Common Pleas Court, and transferred from that court to the Circuit Court of Pettis county, by consent of parties.

The petition was in the usual form for the possession of the east half of the southwest quarter of section 8, township 43 of range 23, situated in Pettis county. The answer was a general denial. The case was tried before the court sitting as a jury, and judgment was given in favor of the plaintiff for possession, etc. Both parties claimed title under one Thomas N. Christian, who held the land by patent from the United States.

The plaintiff, to maintain the issues on her part, relied upon a mortgage executed to her by Christian, in 1858, to secure a debt evidenced by a note for some $800. This mortgage was duly executed and acknowledged, but was not recorded until the 6th of January, 1866. The plaintiff brought suit for foreclosure and sale of the mortgaged premises, and obtained judgment in the Pettis Circuit Court on the 3d of September, 1866, and a special execution was issued on this judgment in June, 1868, and a sale was made thereon on the 29th day of July, 1868, during the session of the Pettis Circuit Court, and the plaintiff at this sale became the purchaser of the mortgaged land. The sheriff made her a deed on the 4th day of August, 1869, which recites the foregoing facts. This deed was acknowledged in open court on the 4th of August, 1869, and an entry to that effect made of record; but the clerk omitted to state in the acknowledgment written on the deed that it was taken in open court, and also stated that it was made the 2d of August instead of the 4th of August, 1869. And the defendants objected to the reading of this deed on that ground, and also on the ground that it did not relate back, as to them, to the time of the sale. But the court overruled these objections, and the defendants excepted. The plaintiff then proved possession by defendants at the commencement of the suit, and rents and profits, and rested.

The defendants then, to maintain the issues on their part, offered as evidence a sheriff's deed, made in 1864, to Logan Clark, on attachment judgment in favor of Logan Clark against said Christian. But this deed was rejected, and properly so, as it did not contain the land in dispute. The defendants then introduced another sheriff's deed, reciting an execution of date January 6, 1866, on the same judgment in attachment, in favor of Logan...