Sargeant v. Rowsey

• Decision Date: 15 November 1886
• Parties: SARGEANT and others v. ROWSEY.
• Court: Missouri Supreme Court

1 S.W. 823

89 Mo. 617

SARGEANT and others v. ROWSEY.

Supreme Court of Missouri.

November 15, 1886.

1. MORTGAGE — FORECLOSURE — DEATH OF DEFENDANT — NO REVIVAL — DECREE AND SALE VOID.

Where a defendant in an action for the foreclosure of a real-estate mortgage dies during the pendency of the cause, and a decree is obtained, and sale had under it, without suggesting the death of such defendant, nor reviving the suit against his heirs, such sale is a nullity; nor could a revival occur until such suggestion is made.

2. GUARDIAN AND WARD — PLAINTIFF'S ATTORNEY GUARDIAN AD LITEM OF INFANT DEFENDANT.

The appointment of the attorney of plaintiff as guardian ad litem for an infant defendant is wholly unauthorized; nor does it help the matter that the plaintiff and one of the adult defendants consented of record to such appointment.

Appeal from Carroll circuit court.

Hale & Eads, for respondents, Sergeant and others. Mirick & Williams, for appellant, Rowsey.

SHERWOOD, J.

The plaintiffs, who are the heirs of John M. Sargeant, brought ejectment for the S. ½ of the N. E. ¼ of section 1, township 55, range 23, and were successful in their suit, and from the judgment they recovered the defendant has appealed.

At one time John M. Sergeant owned the whole of the N. E. ¼ of section 1, township 55, range 23. He mortgaged the whole of it to Tracy Sargeant to secure the sum of $1,350. After this John M. Sargeant sold and conveyed the N. ½ of the N. E. ¼ to Merrill, who subsequently sold and conveyed the same to the defendant, Rowsey; all the deeds being general warranty deeds, that to Rowsey containing this clause: "Subject, however, to a certain mortgage by John M. Sargeant to Tracy Sargeant, bearing date," etc. John M. Sargeant remained the owner of the south 80, the land in dispute. Meanwhile Rowsey paid to Tracy Sargeant, on the mortgage mentioned, the sum of $864.45; these payments being made in different amounts from 1871 to 1874. His deed from Merrill recited a consideration of only $900, while Rowsey testifies that he paid Merrill for the land $1,600 in cash and property. On the contrary, Merrill, a disinterested witness, testifies that Rowsey was to pay $1,000 of the mortgage debt as part of the consideration of the land, and the payment of the $864.45 by Rowsey, which, taken with the $900, would, with interest, just about make up the sum of $1,600, which Rowsey said was the real consideration of the land he bought of Merrill. And when these facts are considered in connection with the further facts of Rowsey accepting his deed from Merrill containing the clause subjecting the land to the payment of the mortgage already referred to, and when it is remembered that in the suit of Tracy Sargeant to foreclose that mortgage the payment by John M. Sargeant of the $350, and interest thereon, are admitted, the whole goes to make up a case very strongly upholding the view taken of this matter by the...