Snyder v. The Chicago, Santa Fe & California Railway Co.y

• Decision Date: 11 December 1895
• Citation: 33 S.W. 67,131 Mo. 568
• Parties: Snyder v. The Chicago, Santa Fe & California Railway Company, Appellant
• Court: Missouri Supreme Court

33 S.W. 67

131 Mo. 568

Snyder v. The Chicago, Santa Fe & California Railway Company, Appellant

Supreme Court of Missouri, First Division

December 11, 1895

Appeal from Chariton Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

Gardiner Lathrop, J. C. Wallace and S.W. Moore for appellant.

(1) The Holloway mortgage is not a statutory mortgage and is at best only a common law mortgage with power of sale. (2) The Holloway mortgage provided that the sale should be "for cash in hand." The sale actually made was on credit, no cash being paid. This entitles the defendant to avoid the sale. (3) The county court had no authority to sell, under the Holloway mortgage, upon any other terms than cash in hand, or to cancel the Holloway bonds except upon the payment of cash. (4) The order of sale made by the county court did not truly describe the debt, so as to sufficiently identify the mortgage, and conferred no authority on the sheriff to make the sale. (5) The sheriff's deed, under the Holloway mortgage, only purports to convey the interest of said Holloway, and upon the conceded facts, at the time of the sale and at the time of the order of the court authorizing the sale, Holloway had no title or interest in the property in controversy. (6) The sale should be set aside for the reason that it was made by the sheriff in mass, without first offering for sale, and selling, that part of the tract outside of the defendant's right of way. (7) At what place should the sale under the Holloway deed of trust have been made? (8) The trustee's deed to J. C. Crawley is void for the reason that it was not made for cash as provided for in the deed of trust and in the advertisement. (9) The trustee's deed to J. C. Crawley is void for the reason that it does not state within what hours the sale took place. (10) The deed from J. C. Crawley to plaintiff was voluntary Mr. Crawley acting only as attorney for plaintiff in making the purchase.

Crawley & Son for respondent.

(1) It is an undisputed fact that the mortgage from Holloway to Chariton county and the deed of trust of Woods and wife to Snyder were both of them subsisting and recorded incumbrances on the quarter section of land at the date of defendant's entry, and that Woods and wife, defendant's grantors, as stated by defendant in its original answer, "purchased said land subject to said mortgage, assuming the payment thereof." This being true, it follows, in the language of Judge Macfarlane when the case was here before, that the sheriff's sale and deed to Snyder under said Holloway mortgage "swept away the rights defendant had procured by its deed from Woods." Snyder v. Railroad, 112 Mo. loc. cit. 540; McShane v. Moberly, 79 Mo. 41. (2) The record shows that said sales were conducted with the utmost publicity, fairness, and good faith on the part of the trustee and sheriff, after due notice had been published in each instance, and that all the requirements of the law and of said trust deed and mortgage were substantially and fully complied with. But, even had it been otherwise, said sales being made under express powers contained in said trust deed and mortgage, were unquestionably sufficient to pass the legal title. Grant v. Huston, 105 Mo. 97; Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v Siemers, 120 Mo. 73; Company v. Donovan, 120 Mo. 423; 2 Jones on Mortgages [4 Ed.], sec. 1792. (3) Defendant railway company is not now, and never was, entitled to redeem from said deed of trust and mortgage, or from either of them. The right of redemption from the lien of a mortgage of land exists as an incident to, and for the protection of, the estate of the mortgagor in the land itself; or, more exactly speaking, such right of redemption is itself an estate in the land. It is this right to redeem coupled with the right of possession, which, until foreclosure, constitutes the mortgagor's seizin and ownership. Bispham's Principles of Equity [3 Ed.], p. 195, sec. 151; 2 Perry on Trusts [2 Ed.], pp. 161, 602j. (4) The grant by Woods and wife to defendant of a way over the land for its trains, was, at most, a mere easement; an incorporeal right to a servitude so long as the estate of said grantors continued, and nothing more. Said grantors did not part with their seizin or equity of redemption. The fee of the land and their estate therein remained as before. Williams v. Plank Road Co., 21 Mo. 580; Kellogg v. Malin, 50 Mo. 496; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Venable v. Railroad, 112 Mo. 103; Union Depot Co. v. Frederick, 117 Mo. 138; Chouteau v. Railroad, 122 Mo. 375; Railroad v. Swinney, 38 Iowa 182; Pierce on Railroads, p. 158; Const. of Mo., art. 2, sec. 21. (5) So that plaintiff by his purchase and deed from the trustee under the deed of trust, acquired the estate and title of Woods and wife just as the same existed at the date of the execution of the deed of trust in 1882, discharged and unburdened of said easement, and leaving in plaintiff, and in him alone, the right to redeem from the county mortgage. McShane v. Moberly, 79 Mo. 41; Meier v. Meier, 105 Mo. 411. (6) If defendant had ever been entitled to redeem, its equity to so do would have been forfeited by its laches and bad faith. Medsker v. Swaney, 45 Mo. 273; Tatum v. Holliday, 59 Mo. 422; Stevenson v. Saline Co., 65 Mo. 425; Reel v. Ewing, 71 Mo. 17; Stamper v. Roberts, 90 Mo. 683; Schradski v. Albright, 93 Mo. 42; Kennedy v. Siemers, 120 Mo. 73.

OPINION

Brace, P. J.

This is an action in ejectment to recover possession of a strip of land in the southwest quarter 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 fourteen 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 twenty-eighth 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 ninth 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 seventh of March thereafter the said Woods and wife executed and delivered a warranty deed therefor, to the defendant. On the fifth of February, 1889, the quarter section was sold under the deed of trust of the ninth of February, 1882; 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 twelfth of July, 1889, the quarter section was again sold, under an order of the county court foreclosing said mortgage to the county of the twenty-eighth of May, 1867, and the plaintiff became the purchaser thereof, and received a deed therefor, in pursuance of such sale, and, on the twenty-fifth of September, 1889, instituted this suit.

The cause was afterwards tried in the circuit court 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).

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 Woods was not foreclosed by the sale made by order of the county court on the twelfth of July, 1889, for the following reasons:

"First. 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.

"Second. 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.

"Third. 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.

"Fourth. Because said mortgage deed is so vague, indefinite, and uncertain that a resort to foreclosure in court should have been resorted to.

"Fifth. 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...