Siemers v. Schrader

• Decision Date: 31 October 1885
• Parties: SIEMERS et al., Appellants, v. SCHRADER et al.
• Court: Missouri Supreme Court

88 Mo. 20

SIEMERS et al., Appellants,

v.SCHRADER et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Thos. A. Russell and E. P. Johnson for appellants.

(1) The acceptance of the contract by Virginia Brault from Siemers, she being in possession, estopped her and those claiming under her, from disputing Siemers' title. Jackson v. Ayres, 14 Johns. 224; Tyler on Ejec. 166; Pratt v. Canfield, 67 Mo. 53; Walker v. Sedgwick, 8 Cal. 403. (2) The introduction of the tax deed made under an assessment against Siemers in evidence estopped them from disputing his title after the tax sale. Rumfelt v. O'Brien, 57 Mo. 569; Brown v. Brown, 45 Mo. 412; Pease v. Lawson, 33 Mo. 35. (3) Siemers having purchased the premises at a sale under a deed of trust, although the sale might not have been regular, it transferred to him the note secured by the deed of trust, and he could maintain this action by virtue of such ownership, he being the real party interested. (4) He could maintain ejectment for the premises independently of the trustee. Rogers v. Gosnell, 51 Mo. 466; McComas v. Ins. Co., 56 Mo. 573; 47 Mo. 582; 40 Mo. 184; 28 Mo. 358.

Pattison & Crane for respondents.

(1) The trustee's deed was a nullity; it appearing upon its face that the notice of sale had not been published for the requisite number of days. German Bank v. Stumpf, 73 Mo. 311; Johnson v. Douglas, Ib. 168. (2) The tax deed offered by respondents was properly admitted in evidence. Laws 1872, p. 130, sec. 222; Spurlock v. Dougherty, 81 Mo. 171; Pillow v. Roberts, 13 How. 472. (3) A claim of title which cannot be set up by a person while in possession, cannot be set up by another person who comes into possession under him. Pratt v. Canfield, 67 Mo. 53.

HENRY, C. J.

On December 18, 1868, Virginia Brault and H. K. Burch executed and delivered a deed of trust conveying the property in dispute to Barr's trustee, to secure a note for three hundred dollars, made by them to Barr. Afterwards said note became the property of plaintiff, who, in 1870, by an instrument in writing, agreed with Virginia Brault to sell, without any unnecessary delay, the real estate in controversy, under said deed of trust, and purchase it, and to convey it to her, on payment to him of money named in said agreement as having been paid by him for her and Burch, and further agreeing that he would not convey or dispose of the property to any one else, within two years from the date of the instrument. This was signed by Siemers alone, but was delivered by him to Virginia Brault. Subsequently, in 1872, the property was advertised for sale under said deed of trust, and Siemers purchased it and received a deed therefor from the trustee, but the sale was not advertised for such a length of time as the trust deed required, and he acquired no title to the property by that deed.

After that sale he conveyed an undivided half of his interest in the premises to his co-plaintiff, Johnson, and they instituted this suit in ejectment to recover the possession of the premises against Schrader, a tenant of Chambers, who, on his own application, was made a party defendant. Chambers purchased the property at a sale for taxes in 1882, and in 1876, Virginia Brault and Burch, and Nancy Bonner, to whom said agreement between Siemers and Virginia Brault had been assigned by the latter, conveyed the property to Chambers by quit-claim deed. Defendant had a judgment in the circuit court which, on appeal to the court of appeals, was affirmed, and plaintiffs have prosecuted an appeal to this court.

Siemers acquired no title by the purchase at the trustee's sale. The requisite notice of the sale was not given, and it is scarcely necessary to cite authorities for the proposition, that a conveyance under such a sale passes no title. By his written agreement he stipulated that he would acquire the title by a sale under the deed of trust, but his attempt to do so was abortive, and nothing has since occurred, so far as is disclosed by this record, to invest him with the legal title. A mortgagee, in the absence of an agreement to the contrary, may maintain ejectment for the possession of the mortgaged premises, after breach of the condition. Jones on Mortgage, sec. 702. But plaintiffs, as owners of the debt secured by the deed of trust, have only the same equitable interest in the trust property which the payee of the note had. The title was not conveyed to the holder of the note, but...