Steele ex rel. Milroy v. Farber
| Decision Date | 31 October 1865 |
| Citation | 37 Mo. 71 |
| Parties | ROBERT STEELE TO USE OF JOHN M. MILROY et al., Respondents, v. SILAS W. FARBER, H. C. MCPIKE et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court.
William Penix, on the 28th June, 1862, executed to the relators (who are the respondents here) a mortgage with power of sale (filed for record July, 1862), conveying certain real estate and personal property, therein described, to secure debts due from him to some of said mortgagees, and to indemnify certain of them as his sureties. After describing the property, he says “and also the products of my farm, until my debts to the aforesaid persons are satisfied.” The deed provides that if the grantor pays his individual indebtedness and saves harmless his co-partners and securities against their said liabilities, the deed to be void; but if “he fails to satisfy said indebtedness,” then the said John M. Milroy is authorized to sell at public auction said property to the highest bidder on such terms as a majority of the beneficiaries may agree upon, and to convey all grantor's right, title, &c., to said property.
Defendant Farber, as surviving partner of Johnson & Co., having obtained judgment against Penix in the Louisiana Court of Common Pleas, caused an execution to be issued and put in the hands of sheriff Steele (plaintiff below) July 23, 1863, who, on the 24th, levied on, among other things, three ricks of wheat and two stacks of wheat as the property of Penix, advertised and sold the same August 26, 1863. On the 6th August, 1863, John M. Milroy, one of the relators, claimed the wheat, and trial of the right of property being had, it was found to belong to said Milroy; whereupon Farber, with McPike, the other defendants, as his surety, gave to the sheriff the usual bond of indemnity, and the sheriff sold said property to satisfy the execution.
This suit was brought on said bond by the sheriff to the use of the beneficiaries claiming damages to the amount of $700, the alleged value of the property.
The petition set forth that Milroy, one of the relators and acting for them, in writing, verified by affidavit, claimed the property levied on as aforesaid--the judgment in favor of Farber against Penix--the issuing and levy of the execution--trial of the right of property--the finding in favor of Milroy--and then alleges the usual breaches of the bond.
The answer denies the claim by Milroy on behalf of the relators, but says the property was claimed by him in his own right--alleges the wheat levied and sold to be the property of Penix, defendant in the execution, and was subject to seizure and sale under the execution.
The suit was commenced in Pike county and a change of venue taken to Ralls county.
Plaintiffs read in evidence the mortgage or deed of trust from Penix, before mentioned; also an agreement between the relators, dated June 11, 1863, fixing the time and terms on which the property should be sold.
William Penix, the mortgagor, was examined, by whom it was shown that he was living on the farm when the mortgage was executed, and continued to reside on it up to the time of sale; also, that all the property remained in his possession on the farm, except a part of it that he sold after mortgage was made, and such as he consumed in the support of his family; that the wheat was sown in the fall of 1862, on part of the land conveyed, by Penix, or by his direction, and he harvested it by direction of Milroy; that he turned over the property (wheat) to Milroy the 20th June, 1863; that the wheat was in stack when the levy was made.
The household furniture was never sold by the trustee, and a horse and some other property were not sold. The debt to Farber & Co. was about $1,000; Penix also owed other debts, probably amounting to $1,200 or $1,500, not secured by mortgage.
Defendants read in evidence transcript of record and proceedings in a suit of Farber, surviving partner, v. W. Penix, in Pike county, showing judgment for $1,018.45, in July, 1862, and execution and return. This return shows a levy on, among other things, three ricks of wheat and two small stacks of wheat, and a lot of oats and hay, a part of which--one rick and one small stack of wheat, and a lot of oats and hay--being claimed by Penix under the exemption law, were set aside to him. The return also shows a claim of the property by Milroy as his property, and upon a trial of the right of property the same was found by the verdict of the jury to be in said Milroy.
There was a judgment for plaintiffs for $520.
Harrison, Campbell & Ewing, for appellants.
I. The mortgage did not pass the title to the products of the farm; for when the instrument was executed the crops were not raised, and could not be pledged or mortgaged. A grant of goods not belonging to the grantor at the time of executing the deed, or not in existence, does not pass the title to the property when acquired. (Jones v. Richardson, 10 Metc. 481; Moddy v. Wright, 13 Metc. 17; Pettus v. Kellogg, 7 Cush. 456; Head v. Goodwin, 37 Me. 132; Gale v. Burnell, 7 Ad. & Ell. 850, 863; Mogg v. Baker, 3 Mees & W. --.)
The grantor must satisfy the grant by some new act for the avowed object and with the view of carrying the former grant or disposition into effect after he acquires the property. (See the authorities above cited and Lum v. Thornton, 1 Mann., G. & S. 379.)
In Jones v. Richardson, supra, the mortgagee offered to prove that the property in question, after it was acquired by the mortgagor and before the right of defendant had intervened (who was an attaching creditor of the mortgagor), was taken possession of with the other property for the purpose of foreclosing the mortgage; this proof was excluded as irrelevant, the judge (Wilde) who delivered the opinion of the court saying that it did not prove, or tend to prove, any act done by the mortgagor after the mortgage was executed, by which he ratified the same as to subsequently acquired property; and this act must be done with the view to give effect to the former grant and for that avowed object.
Even an express stipulation in a lease that the lessor is “to have or hold a lien on the crops raised on the premises until the rent is paid” is merely an executory contract, and by it no general or qualified property in the crops is acquired before they are raised and delivered. Such agreement constitutes no mortgage or pledge of the crops; for when the contract was made they were not raised, and could not be mortgaged or pledged (Barnard et al. v. Burton et al., 5 Vt. 99.) The cases cited by respondents' counsel (20 Mo. 508; 31 Mo. 445) do not apply here.
II. The respondents acquired no right to the products of the farm as mortgagees of the land. So long as the mortgagor continues in possession by permission of the mortgagee, he is entitled to take the rents and profits in his own right, without rendering any account whatsoever therefor to the mortgagee. (2 Sto. Eq. § 1017; 4 Kent Com. 161.)
The mortgagee has no right to the emblements unless he takes possession of the estate mortgaged; and when severed by the mortgagor, they become his property absolutely and without any liability to account for them. (4 Kent Com, 161; Toby v. Reed, 9 Conn. 224-5, and authorities there cited.)
The modern doctrine is well established, that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was given; and until the mortgagee enters for breach of condition, or until foreclosure of the mortgage, the mortgagor is the owner of the mortgaged estate, and has a right to lease, sell, and in every respect to deal with it as owned, so long as he is permitted to remain in possession. (Kennett v. Plummer, 28 Mo. 145-6, and authorities there cited.)
III. The instrument is void as conveying the property to the use o the mortgagor, and as being without consideration. This appears, among others, from this clause, namely: “Whereas I am equally bound with the said James H. Hufford, Wm. W. Waddell, James Bryson, and John B. Henderson, to the following persons,” and then follow the names of the creditors. These creditors are not beneficiaries in the mortgage. but the conveyance is to the co-obligors of the mortgagor.
J. B. Henderson, for respondents.
I. The clause in the deed of Penix for the benefit of his creditors in the following words, to-wit, “also the products of my farm, until my debts to the aforesaid persons are satisfied,” is sufficient to pass to the grantees such crops as might be grown after execution of the mortgage. A crop hereafter to be grown, or materials and stock in business to be subsequently acquired, may be mortgaged; especially is this the case when the lands on which the crops are to be grown, or the buildings factories or other premises in which the materials and stock are to be used in business, are at the same time mortgaged.
II. Whether the clause in the deed conveying the products of the farm was sufficient to pass the crops grown in the future, or not, it is insisted that the mortgage having become forfeited, the possession of the mortgaged premises having been taken by the mortgagee before severance, and the growing crops having been harvested by him, he is clearly entitled to hold such crops as a security for the mortgaged debt against any claim originating subsequent to the date of the mortgage. ...
To continue reading
Request your trial
-
Reed v. Swan
... ... Voorhis, 15 Gray, 139; Coe v. Ritter, 86 Mo ... 282; State ex rel. v. Hager, 91 Mo. 452; Porter ... v. Mariner, 50 Mo. 364; Henschall v ... Williams, 5 Mo. 335; McIlvaine v ... Harris, 20 Mo. 457; Steele to use v ... Farber, 37 Mo. 71; Pratte v. Coffman's ... Ex'r, 27 Mo ... ...
- Ferguson v. Robinson
-
State v. Smit
...such a claim, and that, we think, was competent evidence of the fact. That was the only evidence of the claim in Steele to use v. Farber (37 Mo. 71, 83), and the supreme court seemed to treat it as sufficient, though it does not appear that a specific objection on this ground was made. The ......
-
State ex rel. Grabinsky v. Smit
...return recited that she made such a claim, and that, we think, was competent evidence of the fact. That was the only evidence of the claim in Steele to usev. Farber (37 Mo. 71, 83), and the supreme court seemed to treat it as sufficient, though it does not appear that a specific objection o......