Schanawerk v. Hobrecht

• Decision Date: 19 June 1893
• Citation: 117 Mo. 22,22 S.W. 949
• Parties: SCHANAWERK v. HOBRECHT.
• Court: Missouri Supreme Court

22 S.W. 949

117 Mo. 22

SCHANAWERK v. HOBRECHT.

Supreme Court of Missouri.

June 19, 1893.

EJECTMENT — OUTSTANDING TITLE — WHAT IS.

In ejectment by the purchaser under foreclosure of a trust deed, a prior deed in the execution of the same trust, which is regular on its face, and was recorded prior to the purchase by plaintiff, is a sufficient outstanding title to defeat plaintiff's recovery, though such prior deed might, in a court of equity, be held void, because the sale under which it was given was not made "at the courthouse door," as provided in the trust deed.

In bank. Error to circuit court, Benton county; D. A. De Armond, Judge.

Ejectment by William Schanawerk against John W. Hobrecht. There was judgment for plaintiff, and defendant brings error. Reversed.

E. J. Smith, for plaintiff in error. J. H. Lay and I. D. Hastine, for defendant in error.

BRACE, J.

This is an action in ejectment for two lots in the town of Cole Camp, Benton county. The petition is in common form, and the answer a general denial. Trial before the court without a jury, and judgment for the plaintiff. The defendant brings the case here by writ of error.

The plaintiff, to show title, first read in evidence a deed of trust duly executed by the defendant, bearing date the 24th of April, 1883, conveying the premises to Garret Keiffer, in trust to secure the payment of three promissory notes of the same date, executed by defendant to Henry Mahnkin and Claus Mahnkin, each for the sum of $933.35, payable one, two, and three years after date; and in default of payment the said trustee, "or, in the event of his sickness, death, or absence from the county of Benton, or other disability or refusal to act," "upon request of the holder," was therein authorized to sell the premises "at public vendue for cash at the courthouse door in the county of Benton, first giving twenty days' notice," etc. Next, a deed from John W. Payton, sheriff of Benton county, acting under said deed of trust on account of the refusal of the trustee therein named to act, dated January 30, 1888, conveying the premises to plaintiff in pursuance of a sale that day made by him thereof in compliance with the power conferred in said deed of trust. To defeat the plaintiff's recovery upon this title by showing an outstanding title in another, the defendant read in evidence a deed from said trustee, dated June 23, 1885, executed in pursuance of a sale made that day by him to one Frank Schanawerk in compliance with the terms of said deed of trust, and recorded August 31, 1885; and offered to read in evidence a deed recorded the same day, from V. Newell, sheriff of said county, dated July 24, 1885, conveying the premises to the said Frank Schanawerk, executed in pursuance of a sale made by said sheriff on that day, duly advertised by the trustee in accordance with the requirements of said deed of trust, but which sale the said trustee refused to make. This deed was excluded by the court on the objection of the plaintiff, for the reason that it showed that the land was advertised by the trustee and the sale made by the sheriff.

The plaintiff, in rebuttal, introduced parol evidence tending to prove that for many years there stood in the courthouse square in the town of Warsaw a courthouse erected by said county, in which all its courts were regularly held; also a small house, of one room, some 50 to 75 feet from the courthouse, used as a county clerk's office. That for several years prior to the sale by Keiffer, the trustee, to Frank Schanawerk, in 1885, "said courthouse had been abandoned and torn down, not even the foundation remaining." That after the abandonment of said courthouse the county court held its sessions in said county clerk's office, and the circuit court held its sessions in a building known as the "Christian Church," situate "across one block and two streets from said courthouse square" in said town. This was the situation when the sales were made to Frank Schanawerk, except that it was also shown that at that time there was another small one-room building in the square, used as a circuit clerk's and recorder's office. The property was first offered for sale in front of the county clerk's office between 1 and 2 o'clock P. M., there being present about 15 persons; and "bid off" by one P. D. Hastian, who refused to pay for it. About two or three hours afterwards, and when there was present only about one-third of the number as at the first offer, the property was again offered for sale at the same place, and knocked off to the said Frank Schana werk upon his bid of $500. Thereupon the trustee announced that he would sell said property also at the church, and he and all the crowd except Hastian repaired to the church, and the property was again offered for sale at the door of said church, and bid off by Frank Schana werk for $500. And in pursuance of these proceedings the deed of June 23, 1885, was made to him. At the time the sales were being made no court of any kind was being held in the county clerk's office or in said church building. It was also shown that Newell, who, as sheriff and trustee, made the second deed offered in evidence but rejected by the court, sold the property both in front of the county clerk's office and at said church, and that it was bid off at both places by Frank Schanawerk at $500.

The power of sale given in the deed of trust was restricted to a sale "at the courthouse door in the county of Benton," the time of which sale had been previously advertised for 20 days. This power is the creature of contract, and not of law, and must be strictly followed, in order to render its exercise legitimate. The evidence shows that at the time the sale was made the old courthouse had been torn down, and not a vestige of it remained, and that the new one afterwards erected upon the same site had not yet been built. But it does not show what the situation was when the deed of trust was made. So that, conceding that we might resort to the circumstances attending the transaction for assistance in ascertaining the intention of the grantor, we have nothing to go to in this case except the deed. The letter of the deed is that the sale must be made at the courthouse door, i. e. that one sale of the property shall be made at one door of one particular courthouse; not that several sales shall be made at different times at the doors of several courthouses, as was attempted in this case. The old county clerk's office in the public square in which the county court held its sessions might, for some of the purposes of that court, be called a courthouse, and the church temporarily provided for the circuit court to hold its session in might (at least when that court was in session) be held to be the courthouse for judicial proceedings in that court. Kane v. McCown, 55 Mo. 181; Bouldin v. Ewart, 63 Mo. 331. But it must be remembered that we are here dealing with a power created in a private contract, by a person using language in its usual and ordinary signification, and when he says "courthouse in Benton county," nothing else appearing, he means the house provided by the county for the purpose, and in which are held the sessions of the various courts of the county, (Hambright v. Brockman, 59 Mo. 52,) and in which are generally the offices of the county officials; for that is the meaning usually and ordinarily given to the term "courthouse in a county of Missouri." The evidence in this case discloses that not one of the sales of the property made prior to the one under which the plaintiff claims was made at the door of the courthouse in Benton county, as thus defined, unless a part can be made equal to the whole. In the recent case of Stewart v. Brown, (Mo.Sup.) 20 S. W. Rep. 451, in which four opinions were delivered in court in banc, the questions briefly discussed in this paragraph were very deliberately considered, and the previous decisions reviewed, and we are all agreed that none of the sales to Frank Schanawerk in this case can be upheld under that or any of the previous decisions of this court.

It may be conceded, then, that if this were an action of ejectment by Frank Schanawerk, the first purchaser, against the defendant, the grantor in the deed of trust in possession, in which he had set...