Taylor v. Tarr
Decision Date | 31 October 1884 |
Citation | 84 Mo. 420 |
Parties | TAYLOR v. TARR, et al., Plaintiffs in Error. |
Court | Missouri Supreme Court |
Error to Knox Circuit Court.--HON. B. E. TURNER, Judge.
AFFIRMED.
O. D. Jones for plaintiffs in error.
(1) The petition does not state facts sufficient to constitute a cause of action. Allen's Adm'r v. College, 41 Mo. 302; Turk v. Stahl, 53 Mo. 437; McCoy v. Farmer, 65 Mo. 244; Winevick v. Bender, 33 Mo. 81; McDonald v. Morgan, 33 Mo. 555. (2) The court erred in refusing to set aside the default against Pinckney Tarr, and in not dismissing plaintiff's petition at the close of his evidence. (3) The plaintiff has no standing in a court of equity. The deed of trust is extinct in his favor, the debt it being executed to secure having been paid before it became due. Atkinson v. Augert, 46 Mo. 515. The deed was only a security for the debt, and on its payment any title which may have passed even by default reinvested in the grantor. Peas v. Iron Co., 49 Mo. 124; Hancock v. Whybark, 66 Mo. 672. The deed of trust is also extinct as to plaintiff, the evidence showing that he foreclosed the deed of trust, and caused suit to be brought for the land by the purchaser, who was his minor daughter. Rice v. Bunce, 49 Mo. 231. (4) The wife was entitled to a homestead. R. S., secs. 2689, 2693; Casebolt v. Donaldson, 67 Mo. 308. (5) A deed will not be reformed against a married woman. Shroyer v. Nichol, 55 Mo. 264. An equitable mortgage cannot be enforced against a married woman as to lands not her separate estate. Whitely v. Stewart, 63 Mo. 360. There can be no subrogation against the wife. Wolf v. Walter, 56 Mo. 292. When a creditor asks to be substituted to a security he must take it as he finds it. Logan v. Mitchell, 67 Mo. 542.
McQuoid & Clancy for defendant in error.
(1) Appellants complain that respondent paid off the note a few days before it was due, but do not pretend that any defence could have been made to its payment in law or equity. As soon as the surety has paid a debt an equity arises in his favor to have all the securities, original and collateral, which the creditor held against the person or property of the principal debtor, transferred to him. “In equity the mortgaged estate in such cases becomes its primary fund out of which the debt is to be paid.” Atkinson v. Stewart, 46 Mo. 510; Allison v. Sutherlin, 50 Mo. 274; 1 Story's Eq., sec. 499 (10 Ed.). The surety will be subrogated to the place of the creditor, not only as against his principal, but his wife also, if she joined in the trust deed or mortgage. Dearbon v. Taylor, 18 N. H. 153; 2 Washburn on Real Property, 198, (3 Ed). (2) The equitable interest of the surety attaches at once upon the payment of the debt and the judgment of foreclosure relates back to that date. The claim of homestead was not filed until after this action had been commenced. (3) The court did not err in refusing to set aside the default of defendant, Pinckney Tarr. R. S., secs. 3514, 3557, 3675, 3676; Matthews v. Cook, 35 Mo. 286; Campbell v. Garton, 29 Mo. 343; Palmer v. Russell, 34 Mo. 476. The question of setting aside a default largely rests in the discretion of the trial court. Kribben v. Eckelkamp, 34 Mo. 480; Jacob v. McLean, 24 Mo. 40; Griffin v. Veil, 56 Mo. 310.
George Taylor brought his suit in equity to be subrogated to the rights of the payee of a promissory note, signed by him as surety for Pinckney Tarr, and secured by deed of trust of said Tarr and wife, the other defendant, conveying three hundred and twenty acres of land belonging to Pinckney Tarr, which note Taylor alleged he had paid as such surety; and he prayed for a foreclosure of such deed of trust, and the sale of said lands, and the payment out of the proceeds of such sale of the amount he had paid in lifting said note, with interest and costs. The suit was brought against Pinckney Tarr alone, and it was charged that said Pinckney was insolvent and plaintiff without remedy at law. Terressa Tarr, wife of Pinckney, on her own motion, was made a defendant and filed her answer. She denied the allegations of the petition, alleged that the said note was made March 4, 1878, to be due in one year. That she and her husband executed said deed of trust, that she signed and acknowledged the same under compulsion, and did not acknowledge the execution thereof, on examination, separate and apart from her husband, and was induced to sign and acknowledge the instrument by fraud and misrepresentation on the part of her husband and the justice who certified the acknowledgment. That the note and deed of trust were delivered at the same time, after the deed of trust was acknowledged on March 6, 1878, and that the note could not, therefore, fall due till March 10, 1879.
That on March 3, 1879, before the note was due, plaintiff voluntarily, and without the knowledge or request of either defendant, or her husband, paid said note, and that such payment extinguished such said note, the debt, and destroyed the lien of the deed of trust on the said real estate. That as to eighty acres of said real estate (describing it), she in said deed of trust excepted from relinquishment her dower interest therein. That plaintiff, after paying off said note, caused said real estate to be sold by the trustee named in said deed of trust, and bid in the same at such sale in the name of his infant daughter, Anna M. Taylor, to whom, although she paid nothing therefor, and had nothing to pay with, he caused a trustee's deed to said real estate to be made. That plaintiff caused suit in ejectment for said real estate to be brought against said Pinckney Tarr, in the name of his said infant daughter, by himself as her next friend, and in said suit had then just recovered judgment by default against said Pinckney (having fraudulently dismissed as to her, said Terressa), for the possession of said lands. That said Pinckney Tarr, in January, 1879, abandoned her and their children, and had ever since absented himself, and was then a resident of the state of California, and she never expected to live with said Pinckney again, and was entitled to a divorce. That in November, 1880, she duly made, signed, and acknowledged, and had recorded in the recorder's office in said county, her claim of homestead, under the statute, in and to a certain one hundred and sixty acres of said real estate (describing it), as the abandoned wife of said Pinckney. That she was occupying and using said one hundred and sixty acres with her children, two of them minors, as a homestead, and that the same had been used and occupied as a homestead long before said deed of trust was made, and had been so occupied and used ever since then. She prayed for the assignment and setting off of her homestead, the cancellation of said deed of trust, and for relief generally.
Pinckney Tarr, at the trial term, appeared by agent and attorney, and moved to set aside the interlocutory judgment by default, previously entered against him, represented that he was a non-resident of the state, and had no notice of the suit till since the return term. Tha...
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