Schwickerath v. Cooksey

• Decision Date: 31 July 1873
• Citation: 53 Mo. 75
• Parties: JOSEPH SCHWICKERATH, Defendant in Error, v. JOHN COOKSEY, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

53 Mo. 75

JOSEPH SCHWICKERATH, Defendant in Error,

v.JOHN COOKSEY, et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1873.

Error to Morgan Circuit Court.

James A. Spurlock, for plaintiffs in error.

I. The purchaser at a sale, made by a mortgagee selling under a power, for the payment of debts, must take notice of the title and its defects. He buys at his own peril. (Barnard vs. Duncan, 38 Mo., 170.)

II. There is a want of privity, and there are no equities in the bill. (Haley vs. Bagley, 37 Mo., 363.)

Stover and Neilson, for defendant in error.

A court of equity will grant relief against mistakes in written instruments, such as correcting mistakes in the description of lands conveyed by deed or mortgage, at the instance of a purchaser at such trustee's or mortgagee's sale. (Waldron vs. Letson, 15 N. J. Eq., 126; Young vs. Coleman, 43 Mo., 179; Corby vs. Bean, 44 Mo., 379; Jennings, vs. Brizeadine, 44 Mo., 332.)

SHERWOOD, Judge, delivered the opinion of the court.

The petition in this case alleged that Thomas Cooksey, in September, 1862, agreed to and did convey by mortgage deed to Morgan county, to secure an indebtedness due by him to said county, the northeast quarter of the southwest quarter of section 2, township 42, range 19, among other land then owned by him, and that said mortgage was duly recorded; that through the mistake of the draughtsman, a different forty, to wit: the northwest quarter of the southwest quarter of section 35, township 43, range 19, was inserted instead of the forty intended, and that Cooksey never owned the tract thus mistakenly inserted; that Cooksey died March 19, 1863, leaving defendants, except the justices of the Morgan County Court, as his heirs at law; that the mortgage was given to secure two promissory notes; that these notes were not paid when they fell due; that the sheriff of Morgan county on the 5th day of August, 1869, under the terms of the mortgage, sold to plaintiff the real estate “in said mortgage deed,” at public sale, and on the same day executed to him a deed “to the real estate in said mortgage deed described.”

The petition then concludes with a prayer, that the title of the heirs in the forty first described be divested, and that the same be vested in plaintiff, etc.

The county justices admitted the allegations of the petition. The heirs answered, admitting that Thomas Cooksey was the holder of the legal title of the lands mentioned and referred to in plaintiff's petition, but that the same was in trust for the use and benefit of John Cooksey, his father, who furnished the purchase money, and always held and enjoyed peaceable possession of the same, and opened a farm thereon. They denied that Thomas Cooksey ever agreed to execute to Morgan county, a mortgage for the land, that any mistake was made; or, that there was any land conveyed in the mortgage but what was intended to be conveyed; and asserted that the mortgage was made in fraud of the rights of John Cooksey, who was in possession and the equitable owner. They also charged, that the plaintiff sold to Thomas Cooksey and Leopold Phillips his mill and lands, and induced Thomas Cooksey to mortgage his father's, John Cooksey's, land for plaintiff's debt, well knowing that defendant, John Cooksey, was the owner of, and in possession of the same, and had cleared a farm thereon; that plaintiff, in March 1867, presented his notes and accounts to Morgan probate court, against Thomas Cooksey's estate, and certain lands were thereupon by the order of the court released and relinquished to plaintiff, who, in consideration thereof, made a release to said estate, “of all demands.” They denied that there was any legal foreclosure of the mortgage or any sale; stated, that plaintiff had no legal or equitable right to the lands described in the mortgage, much less to the lands in dispute, and they claimed the benefit of the statute of frauds, etc.

The plaintiff filed a replication, in which he denied many of the allegations of the answer, but did not deny that the mortgage was given to secure a pre-existing debt due to Morgan county by the plaintiffs, nor that he had sold to Thomas Cooksey and Leopold Phillips his mill and lands; nor that he presented his notes and accounts against the estate of Thomas Cooksey in 1867, had certain lands relinquished to him by the administrator, and that in consideration of such relinquishment he had executed to the estate of Thomas Cooksey, “a release of all demands;” nor that defendant, John Cooksey, had cleared a farm, etc., as alleged in his answer.

At the hearing, the plaintiff, Schwickerath, was introduced, and he testified, in substance, that in 1860 he sold some mill property to Phillips and Cooksey for $7,000; that they could only pay him $400 down, and that he was owing about that sum at that time; that Thomas Cooksey and Leopold Phillips gave their note to Morgan county for $400 with himself as security, Cooksey gave his mortgage to Morgan county to secure the payment of that note, and in that way they paid the $400 cash payment on the mill property. The mortgage was on Thomas Cooksey's farm, and plaintiff and another man were sureties on the note to the county; that he paid the debt and took an assignment of the note and had the mortgage property sold, and at the sale bought it in, and at the time he bought thought he was buying the Thomas Cooksey farm. The sheriff said it was the farm he was offering for sale.

At the time the mortgage was made, he knew the farm; Cooksey showed it to him. He did not show the corners, but where the land lay. It was improved to some extent, and John Cooksey, the father of the deceased, was living on it at the time and Thomas Cooksey was there also. A mistake had been made in the mortgage as described in the petition. Plaintiff then read in evidence the mortgage deed containing a description of the land as described in the petition, to secure two notes given by Thomas Cooksey, Leopold Phillips and plaintiff, one note for $240 68, and the other for $150 38, making about $400, to Morgan county, and which mortgage was conditioned that the sheriff might sell on default of payment. This mortgage is dated September 2nd, 1862.

Mills testified, on the behalf of plaintiffs, that Thomas Cooksey and his father lived on part of the lands mortgaged.

The defendants then read in evidence as follows: The order of the probate court showing, that on the petition of plaintiff, the court had, because of the insolvency of Thomas Cooksey's estate, ordered a relinquishment to be made of the land bought by deceased to plaintiff by the administrator on the best terms that could be agreed on; and the order shows that the indebtedness of deceased then amounted to $7,550. The report of the administrator showed he had agreed to relinquish the lands, mentioned in the order to plaintiff, and that the latter had agreed to accept the relinquishment in full satisfaction of Thomas Cooksey's part of the indebtedness, that is to say, in full satisfaction of one-half of said indebtedness. This report was made March 15th, 1867, and was approved.

The release by the administrator to plaintiff, is of the same date as the approval of the report, and is on the same conditions as above mentioned, and recites the fact of Thomas Cooksey having purchased the undivided one-half of lot 2 of northwest quarter of section 6, township 43, range 19, of plaintiff for $3,000, on January 25th, 1861, which, with interest, amounted to $3,775 07.

Defendants then read the deed from the sheriff of Morgan county to plaintiff for the lands as described in the mortgage, showing sale, etc., after advertisement of the property as described in the mortgage. This deed is dated August 5, 1869.

They also read in evidence a deed of release from Leopold Phillips and wife for the whole of the northwest quarter of section 6, township 43, range 19, in consideration that plaintiff agreed to release Phillips from all indebtedness on their promissory notes which he held on said Phillips and Thomas Cooksey. This release is of the same date as the one from Cooksey's administrator.

Defendants also read in evidence a copy of what purports to be a record of the Morgan Circuit Court, showing a judgment of foreclosure in favor of plaintiff and against Phillips and Cooksey's administrator, wherein the debt is set down at $4,690 51, and an order made for the sale of the west half of lot 2 of the north-west quarter of section 6, township 43, range 19, and east half lot of same section, township and range; but the time when this was rendered does not appear. Defendants here rested.

The plaintiff then proved by Mills, that plaintiff paid off the notes mentioned in the mortgage of Thomas Cooksey, deceased, to the county in 1869 or '70; that he knew the Thomas Cooksey farm: the buildings were on northwest quarter section 2, township 42, range 19, and that the N. E. 1-4, of S. W. 1-4, section 2, township 42, range 19, was improved some years before; that plaintiff bought in the lands, and paid off the balance of the debt, as the lands did not bring enough. The court then found for plaintiff and a decree was entered accordingly; and this case comes here on a writ of error.

Cases in many points similar to the one here presented, have heretofore occupied the attention of this court.

In Haley vs. Bagley, 37 Mo., 363, where a mortgage had been executed by Bagley to Charles Haley, to secure a payment of a certain debt, the property misdescribed and the...