Snyder v. Chicago, S. F. & C. Ry. Co.

• Decision Date: 11 December 1895
• Citation: 131 Mo. 568,33 S.W. 67
• Court: Missouri Supreme Court
• Parties: SNYDER v. CHICAGO, S. F. & C. RY. CO.

33 S.W. 67

131 Mo. 568

SNYDER v. CHICAGO, S. F. & C. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 11, 1895.

MORTGAGES — FORECLOSURE — SALE — VALIDITY.

1. Gen. St. 1865, p. 270, § 69, provides that school-fund mortgages shall be in the ordinary form of a conveyance in fee, and shall contain a condition that, on default, the sheriff of the county may, "without suit on the mortgage," sell the mortgaged premises, and make an absolute conveyance thereof in fee to the purchaser, which shall be as effectual as if such sale and conveyance was made by virtue of a judgment of foreclosure. 2 Rev. St. 1879, § 7113, provides that, when any sum secured by mortgage containing a power to sell shall become due, the county court may order the sheriff to levy, with costs, on the property conveyed by the mortgage; and, a copy of such order duly certified being delivered to the sheriff, it will have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly. Held, that where a mortgage taken under section 69 contained all the essentials of such section, and gave the sheriff express power to foreclose in the manner

therein prescribed, a sale by the sheriff, under an order of the county court, under the power thus granted, foreclosed the mortgagor's equity of redemption, though the condition in the mortgage did not contain the quoted words in section 69, and provided for a sale at public outcry for cash in hand at the courthouse door, first giving 20 days' notice in some newspaper, — stipulations not required by the statute.

2. In an action attacking a sale under a school-fund mortgage, it appeared that the mortgage provided that the sale should be for "cash in hand"; that the purchaser negotiated a loan from the same fund of an amount equal to the principal of the mortgage debt; that the securities given for such loan, together with a sum equal to the secured interest on the mortgage debt and the expense of the trust, were accepted in payment of the purchaser's bid, and the mortgage was satisfied and the deed delivered and filed for record two months after the sale; that the payment of the amount bid was delayed for the approval of the sale by the county court; and that the sheriff's deed recited that the land was sold under the power in the mortgage, and in compliance with the order of the county court, for cash, and acknowledged the receipt of the money. Held, that the sale was not open to attack on the ground that it was not made for cash, as was required by the terms of the mortgage.

3. Where one of several bonds secured by a mortgage was for the sum of $200, a sale, otherwise regular, under an order of the county court, and pursuant to the terms of the mortgage, was not invalid because the order of the county court recited that such bond was for $100. Honaker v. Shough, 55 Mo. 472, distinguished.

4. After a mortgagor had parted with all his interest in the land, the sheriff, under the mortgage barring the right of redemption, and an order of the court, exposed to sale "all the right, title, and interest of the said" mortgagor "in and to said tract of land," and, by his deed, conveyed "all the right, title, and interest of the said" mortgagor "in and to said real estate" to the purchaser. Held, that the legal title passed by the mortgage and the sheriff's deed to such purchaser, and the right of redemption of such mortgagor and those claiming under him was lost by the foreclosure.

5. The mere fact that the property conveyed by a deed of trust is sold in gross is not sufficient to avoid the sale.

6. A mortgage provided that the sale under it should be made at "the east door of the courthouse" in K. At the time it was made, the courts were being temporarily held in a schoolhouse in K. Held, that a sale at the east door of the courthouse afterwards constructed in K. was valid. Stewart v. Brown, 20 S. W. 451, 112 Mo. 171, followed.

Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

Ejectment by Benjamin F. Snyder against Chicago, Santa Fé & California Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

For prior report, see 20 S. W. 885.

Gardiner Lathrop, J. C. Wallace, and S. W. Moore, for appellant. Crawley & Son, for respondent.

BRACE, C. J.

This is an action in ejectment to recover possession of a strip of land in the S. W. ¼ of section 11, township 56, range 19, in Chariton county, inclosed and occupied by defendant as a right of way, running diagonally through said quarter section, and containing about 14 acres. The case was tried before the court without a jury. The plaintiff had judgment, and the defendant appeals. The facts, so far as necessary to be stated for the purpose of this opinion, are that on the 28th of May, 1867, John B. Holloway, then the owner of said quarter section, executed a mortgage to Chariton county, conveying the same to said county, to secure the payment of $1,584.54, borrowed by him of the school funds of said county. In January, 1882, the said Holloway sold and conveyed said quarter section to O. H. Woods and wife, subject to said mortgage. On the 9th of February, 1882, the said Woods and wife executed a deed of trust, with power of sale, conveying said land to James Snyder, trustee, to secure the payment to plaintiff of a note of said Woods for the sum of $1,050. In February, 1887, the defendant went into possession of the strip of land in said quarter section in controversy, and on the 7th of March thereafter the said Wood and wife executed and delivered a warranty deed therefor to the defendant. On the 5th of February, 1889, the quarter section was sold under the deed of trust of the 9th of February, 1882, and was purchased for the plaintiff by his attorney, who received the trustee's deed therefor, and transferred the title thus acquired to plaintiff. On the 12th of July, 1889, the quarter section was again sold under an order of the county court foreclosing said mortgage to the county of the 28th of May, 1867, and the plaintiff became the purchaser thereof, and received a deed therefor, in pursuance of such sale, and on the 25th of September, 1889, instituted this suit. The cause was afterwards tried in the circuit upon the issues then made, and judgment rendered for the defendant, from which the plaintiff appealed to this court, where the judgment was reversed, and the cause remanded for new trial. Upon that appeal it was decided that the plaintiff was not estopped from asserting his right to the possession of the land in controversy under the legal title acquired by him by his deed made in pursuance of the sale made in foreclosure of the county mortgage, and that his right of action was not barred by the statute of limitations. 112 Mo. 527, 20 S. W. 885.

After the cause was remanded, the defendant filed an amended answer, tendering new issues, upon which the case was tried the second time, and from the judgment in this second trial the present appeal is prosecuted. The main issue tendered by the amended answer is that Holloway's equity of redemption acquired by Wood was not foreclosed by the sale made by order of the county court on the 12th of July, 1889, for the following reasons: "(1) Because said pretended sale was not made at the courthouse in Keytesville, in which the circuit and other courts were held at the time of the execution of said mortgage deed, which was the courthouse designated and intended by the parties to said mortgage deed; (2) because said sale was not made by the person who was sheriff of Chariton county at the time of the execution of said mortgage deed, as contemplated by said deed, and there was no provision in said instrument conferring such power of sale upon his successor in office; (3) because said property was not sold for cash in hand as required by law, and by the terms of said mortgage deed, and by the terms of the advertisement giving notice of the sale, but was unlawfully attempted to be sold to plaintiff upon time payments, and without the payment of cash, and thus a secret and unlawful preference was given plaintiff, which was a fraud upon this defendant and others who might desire to bid upon said property; (4) because said mortgage deed is so vague, indefinite, and uncertain that a resort to foreclosure in court should have been resorted to; (5) because no proper, sufficient legal notice by publication of such sale was given in any newspaper printed and published in Chariton county, and because said attempted publication was not for the length of time required by law, and did not correctly give the time, terms of sale, place, and a description of the property to be sold; (6) because there is no provision in said mortgage deed permitting a sale `without suit on the mortgage,' as required by law, and a sale without suit on the mortgage is void; (7) because the order of the county court dated May 8, 1889, conferred no authority upon said O. B. Anderson, the power of said county court to order such sale, if any existed, being contained in and confined to an...