Stillwell v. Hamm

• Decision Date: 18 March 1889
• Citation: 11 S.W. 252,97 Mo. 579
• Parties: STILLWELL v. HAMM et al.
• Court: Missouri Supreme Court

11 S.W. 252

97 Mo. 579

STILLWELL v. HAMM et al.

Supreme Court of Missouri.

March 18, 1889.

PLEADING — PARTIES — MORTGAGES.

1. Where the law requires a contract to be in writing, an allegation that it was made will be held to imply that it was made in lawful form.

2. Where a note is made payable to a person other than the creditor, merely for the convenience of the latter, while the payee may maintain an action in his own name as trustee of an express trust, the creditor will be regarded, in equity at least, as the owner of the claim evidenced by the note.

3. Where there is an agreement to hold the legal title to land as security for a debt, and the mortgagee takes possession after condition broken, and receives the rents and profits on account of his debt until it is fully paid, the mortgagor's right to be restored does not accrue, so as to set the statute of limitations in motion, until such payment has been completed.

4. Plaintiff alleged that defendant had agreed to hold the legal title to the land in controversy as security for a debt, and had entered into possession after default, and had collected sufficient rents and profits to pay the debt in full. The prayer was that defendant be required to render an account of all rents and profits received, that the debt be declared fully paid, and that defendant be divested of all title, and that the title be vested in plaintiff. Held, that there was no improper joinder of causes of action the petition being in the main a bill to redeem, and the other relief prayed being merely incidental, but germane, to the case made.

5. In such suit, other persons than the mortgagee, claiming some interest in the land adverse to plaintiff, were properly joined as defendants.

Error to circuit court, Platte county; GEORGE W. DUNN, Judge.

This case presents for consideration a judgment rendered by the trial court upon demurrer to a petition. The questions involved will best appear from the language of the pleadings:

"IN THE CIRCUIT COURT OF PLATTE CO., MISSOURI.

"Dixon Stillwell, Plaintiff, vs. Jacob S. Hamm, Jacob Hamm, Adam Durkes, and Benj. Bonifant, Defendants.

"AMENDED PETITION.

"Plaintiff states that on the 26th day of August, 1870, he was the owner by fee-simple title of the following described lands, lying and being situate in the county of Platte, in the state of Missouri, viz. The west half of the south-west quarter of section two, (2,) in township fifty-three, (53,) in range thirty-six, (36,) containing 80 acres, more or less. Plaintiff states that said land was at said time, and ever since has been, worth the sum of three thousand dollars, ($3,000.) That said land was the homestead whereon lived this plaintiff with his family, consisting in part of himself and his wife, Susan Stillwell. Plaintiff states that on the 26th day of August, 1870, this plaintiff borrowed of defendant Jacob Hamm the sum of two hundred dollars, ($200.) Plaintiff states that when the negotiations were made for said loan with Jacob Hamm, at the request of said Jacob Hamm this defendant signed a note to Jacob S. Hamm, defendant herein, who is a son of said Jacob Hamm. Plaintiff states that said note was given for said sum of two hundred dollars, and was made payable one year after date, and bearing ten per cent. per annum interest from due; said interest, if not paid at the end of each year, to become as principal, and bear the same rate of interest. Plaintiff states that at the request of said Jacob Hamm he gave a mortgage on said land above described to secure said note, the same that is recorded in Deed Book W, on page 315, of the records of Platte county, Mo. Plaintiff states that said Jacob Hamm, after forfeiture of said mortgage, procured that the same be foreclosed in the name of his said son, Jacob S. Hamm. Said suit was instituted in the Weston court of common pleas, in which said suit a judgment was obtained by said Jacob Hamm, in the name of his said son, Jacob S. Hamm, against this plaintiff, for the sum of two hundred and seventy-six dollars, ($276,) at the spring term of said Weston court of common pleas, A. D. 1874, on the 11th day of March, 1874. Plaintiff states that after said time said Jacob Hamm caused an execution to be issued, purporting to be issued on a judgment for the sum of two hundred and ninety-six dollars, ($296,) whereas, in fact, no such judgment existed. Plaintiff states that, on objections being made by this plaintiff to such sale, the said Jacob Hamm entered into an agreement with plaintiff as follows: (1) That said Hamm (Jacob) on his part should purchase said land at such pretended sale, and that the conveyance made pursuant to said sale should be held as a mortgage to secure the debt due from this plaintiff to said Hamm, viz., the said sum of two hundred and seventy-six dollars, and interest on the same from the date of said judgment, viz., the 11th day of March, 1874. (2) That this plaintiff should have one year's time in which to pay said debt, provided this plaintiff would pay the costs of said foreclosure suit in said Weston court of common pleas. Plaintiff states that, pursuant to said agreement, he paid said costs; but when said debt became due he was unable to pay the same according to said agreement.

"Plaintiff states that upon his failure to pay said debt, and the interest thereon, the said Hamm afterwards, viz., on the ______ day of January, 1876, took possession of said land, and proceeded to collect all rents and profits of same, and has collected the same to this date. Plaintiff states that on the 1st day of January, 1882, said rents so collected by said Hamm were sufficient to pay said debt and interest, and all necessary improvements and the taxes on said land, and that ...