Stayton v. Hastain
| Decision Date | 31 May 1909 |
| Citation | 120 S.W. 763,221 Mo. 712 |
| Parties | JOSEPH G. STAYTON v. W. A. HASTAIN, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed.
Francisco & Clark and Bruce Barnett for appellant.
(1) Although defendant in his individual capacity acquired the note in question after its maturity, yet he stands in the shoes of and has all the rights and benefits of a purchaser before maturity, because he is the transferee of a purchaser before maturity. Langsford v. Varner, 65 Mo.App 370; Bank v. Stanley, 46 Mo.App. 440; Griswold v. Buechle, 72 Mo.App. 53. (2) It is a general principle that a man cannot be divested or deprived of his property without his own consent or voluntary act and to divest him of his property by the act of an agent, two things must appear first, the agency must be shown; second, authority of the agent to dispose of the property must be shown. Mechem on Agency, sec. 785. (3) The deed of trust in question having been properly acknowledged and recorded prior to the purchase of the land by plaintiff, the same imparted notice to him of the contents thereof and he is "deemed, in law and equity," to have purchased with such notice. R. S. 1899, sec. 924. (4) Defendant's right under his deed of trust was an interest in real estate and Avery had no authority to dispose of or relinquish the same or contract therefor as agent, because not authorized in writing. R. S. 1899, sec. 3418; Greening v. Steele, 122 Mo. 287; Hawkins v. McGroarty, 110 Mo. 546; Roth v. Georger, 118 Mo. 556. An oral agreement to cancel a mortgage note in consideration of the surrender of the premises is within the Statute of Frauds. Wendover v. Baker, 121 Mo. 273. (5) An agent authorized only to sell land has therefrom no implied power to release or discharge a mortgage belonging to his principal. Mechem on Agency, sec. 333. (6) The evidence wholly fails to show any agency or authority whatever upon Avery's part to dispose of or relinquish defendant's interest in the land under the deed of trust. Mechem on Agency, sec. 100. Authority of an agent to sell or relinquish an interest in real estate must be established by clear, distinct and positive evidence. Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; Hunter v. Sacremento Valley Beet Sugar Co., 11 F. 15; Lord v. Sherman, 2 Cal. 498; Hurley v. Watson, 68 Mich. 531; Aldrich v. Londonderry, 5 Vt. 441. (7) Defendant's rights under his deed of trust have not been defeated by adverse possession because the evidence wholly fails to show any act of adverse possession as against defendant as mortgagee. The friendly relation between the mortgagor and mortgagee will be regarded as continuing until disclaimed by declarations or acts unmistakably hostile, and the purchaser from the mortgagor with constructive notice of the mortgage stands in the shoes of the mortgagor. Chouteau v. Riddle, 110 Mo. 366; Lewis v. Schwenn, 93 Mo. 29; Combs v. Goldsworthy, 109 Mo. 160; Benton Co. v. Czarlinsky, 101 Mo. 275; Comstock v. Eastwood, 108 Mo. 41; Hamilton v. Boggess, 63 Mo. 234. (8) The record of a deed given by a mortgagor after the execution of a mortgage does not constitute notice to the mortgagee, and is not an act of adverse possession. Meier v. Meier, 105 Mo. 433; 2 Jones on Mortgages, sec. 1624.
T. W. Silvers for respondent.
Stayton held adverse possession of the land for over ten years, namely, from November, 1891, till April, 1902, without any knowledge or information of Hastain's claim. Therefore, Hastain's claim is barred by the Statute of Limitations. The intention with which a party takes possession and holds it is a controlling factor in determining whether his possession is adverse or not. As was said in the case of Ewing v. Burnet, 11 Pet. (U.S.) 41, "The intention guides the entry and fixes its character." 1 Am. and Eng. Ency. Law (2 Ed.), 789; Music v. Barney, 49 Mo. 458; Betts v. Brown, 3 Mo.App. 20; Knowlton v. Smith, 36 Mo. 507; Brown v. Cockrell, 33 Ala. 45; Alexander v. Wheeler, 69 Ala. 332; McMamares v. Seeton, 82 Ill. 498; Skinner v. Crawford, 54 Ia. 119; Winn v. Abeles, 35 Kan. 85; Colvin v. Land Ass'n, 23 Neb. 75. It is admitted that plaintiff's possession was actual, open and notorious, exclusive, and continuous, the only contention of appellant being that, in its incipiency, plaintiff's possession was friendly and not hostile to defendant's claim. Stayton is not in the position of one claiming under a mortgagor only. He holds title from the mortgagor and the mortgagee both. The mortgagor, Gosman, repudiated any further claim against him on the mortgage when he settled with Avery and re-conveyed to Avery in full payment of his indebtedness. There could not have been any plainer act on the part of the mortgagor to show his intention to end all claims against him on the mortgage. So far as he was concerned, he paid it off, as he thought. The mortgagee, Avery, took his conveyance in full settlement of the mortgage indebtedness. He then sells to Stayton and Eads, without disclosing to them that there was any mortgage on the land, or that there was any outstanding claim whatever. When they went into possession under a warranty deed from one who appeared of record to hold the entire title, they could not be held to act in recognition of any outstanding claim; and in fact they could not have acted in recognition of such claim, not having any actual or constructive notice thereof. Of record they appeared to hold both the title of the mortgagor and of the mortgagee, and their holding could not be held friendly to one claiming the interest of the mortgagee, when they had no actual knowledge of such claim, and of record are claiming to hold such title themselves. Stayton's possession was so open and notorious and his acts of ownership were so obvious that all persons must have known that he claimed the land as his own, absolutely. And, having so claimed it for more than ten years before Hastain demanded any money on his deed of trust, he can still hold it as against Hastain. Daper v. Shoot, 25 Mo. 197; Fugate v. Pierce, 49 Mo. 441; Music v. Barney, 49 Mo. 458; Key v. Jennings, 66 Mo. 367; Bush v. White, 85 Mo. 360; Miller v. Bledsoe, 61 Mo. 96.
OPINION
The plaintiff brought this suit in the circuit court of Bates county for the purpose of setting aside a deed of trust upon eighty acres of land, situate in said county, and to remove from his title thereto the cloud cast upon it by said deed.
The land formerly belonged to one Herbert D. Gosman, who, on February 12, 1888, executed the deed of trust in question to W. A. Hastain, trustee, to secure his promissory note for the sum of $ 1,000, of even date, payable to A. C. Avery, due three years after date, and bearing interest at eight per cent, which deed of trust was properly recorded on April 27, 1888.
On January 23, 1891, Gosman conveyed the land to Avery in full payment of the note, secured by said deed of trust, but neither the note nor deed of trust was present when said transaction took place. Avery, in writing, acknowledged receipt of the payment of said note and recited therein the manner of its payment. At that time Avery was neither owner nor the holder of the note and deed of trust, and therefore omitted to deliver them to Gosman or to release the deed of trust of record. After Gosman had deeded the land to Avery, the latter for a valuable consideration endorsed the note to the defendant, and subsequently thereto, on November 25, 1891, while Avery owned the land, he conveyed by warranty deeds sixty acres of same to the plaintiff, for which he agreed to pay $ 700, and the remaining twenty acres to one Eads, for which he agreed to pay $ 300. This latter twenty acres was later conveyed to plaintiff also. On January 16, 1893, Avery, after transferring the note to defendant, executed a quitclaim deed without request from plaintiff, whereby he attempted to release said deed of trust, but by error described the land as being in range thirty-nine, when, in fact, it was located in range twenty-nine.
Avery testified that it was his impression that at the time he took the deed from and executed the above receipt to Gosman, he (Avery) still held the note as owner thereof, and that his impression was that a short time thereafter, and according to his impression, after the maturity of the note, he transferred, indorsed and delivered the note to W. A. Hastain, the defendant, upon an indebtedness of his to the estate of P. and G. W. Walker, of which the defendant was administrator. Avery admitted that he was not at all positive as to the correctness of these impressions.
The defendant testified that he acquired the note prior to July 5, 1888, and shortly after the date of its execution; that he was at that time administrator of the estate of P. and G. W. Walker, to which estate Avery was indebted in a large sum; that as payment upon this indebtedness he turned over this and other notes to the defendant, as such administrator; that under an order of distribution of the assets of said estate, this note fell to the two Middaugh heirs, who, as grandchildren of one of the Walkers, had an interest in the estate. The defendant was guardian and curator of these Middaugh heirs, as well as administrator of the Walker estate; that in his next annual settlement as such administrator, made July 5, 1888, he accounted for a lump sum, which included the amount of this note collected from Avery upon his indebtedness to the estate, and in his annual settlement as guardian and curator of Pleasant W. Middaugh, a minor, made in the probate court of Henry county, on July 5, 1888, he charged himself with this note secured by the deed of trust in question.
The annual...
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