Walcop v. McKinney's Heirs

• Decision Date: 31 July 1846
• Citation: 10 Mo. 229
• Parties: WALCOP & GRISWOLD v. MCKINNEY'S HEIRS.
• Court: Missouri Supreme Court

10 Mo. 229

WALCOP & GRISWOLD

v.MCKINNEY'S HEIRS.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM WARREN CIRCUIT COURT.

CAMPBELL, for Appellants.

BIRD, for Appellees.

McBRIDE, J.

Alexander McKinney's widow and heirs instituted an action of ejectment in the Circuit Court of Warren county, to recover possession of a tract of land situated in said county, and described as a “certain tract or parcel of land, situate on Lake creek, containing thirty-eight acres, more or less, in Charette township, in Warren county, and the same tract conveyed by Andrew Cockran to William F. Bentinck, and the same conveyed by said Bentinck to Alexander McKinney, as will more particularly appear by reference to the record of convevances from said Cockran to Bentinck, and from said Bentinck to said McKinney, found in the office of the recorder of said county of Warren.” The defendant, Walcop, being the tenant in possession, and not claiming title, the defendant, Griswold, was on motion permitted to be made co-defendant and they thereupon filed their plea of not guilty, on which issue having been taken, the parties went to trial, when the jury found the defendants not guilty, whereupon the plaintiffs filed their motion for a new trial, which was sustained by the court, and a new trial granted.

On the second trial the jury found “the defendants guilty of withholding from the plaintiffs the possession of the premises, as is alleged in said plaintiff's declaration,” on which the court entered judgment; thereupon the plaintiffs filed their motion in arrest of judgment, and for a new trial, which being overruled they excepted, and have brought the case here by appeal.

The bill of exceptions sets out the proceedings had on the trial in the Circuit Court, with the evidence given on the trial, and that offered by the defendants, and excluded by the court, from all of which it appears that the parties each claim title under Wm. F. Bentinck; who had purchased the land in controversy from one Andrew Cockran. Bentinck, on the 24th January, 1838, mortgaged the premises to Alexander McKinney. On the 23rd October, 1838, Griswold obtained a judgment in the Warren Circuit Court against Bentinck; on the 25th January, 1840, he obtained four other judgments before a justice of the peace, and filed transcripts of the same in the clerk's office of the Warren Circuit Court. On the 31st July, 1840, Bentinck conveyed by deed to McKinney, who at the same time executed a defeasance bond, binding himself to re-convey, provided Bentinck should, within two years, pay him the amount of his debt with the accruing interest. On the 24th November, 1840, the sheriff, by virtue of Griswold's executions, sold the land in controversy, and Griswold became the purchaser, and obtained a deed from the sheriff.

The counsel for the appellants assume that the deed under which the appellees claim to have title, although absolute on its face, was intended by the parties as a mortgage, and being so intended it will be taken and treated as such by the court. Having thus determined the character of the deed, it is then argued that a mortgage, under our statute, is a simple security for a debt, and does not, as in England, pass such a title as will enable the mortgagee to maintain an action of ejectment.

There is no question but that our statute has greatly changed the character of mortgages, and the rights of parties under them, but still the authority referred to does not sustain the doctrine contended for by the counsel. In the case referred to, in 1 J. J. Marsh. 257, are stated some of the principles which characterize mortgages in this country at the present time; as that a payment of the mortgage debt extinguishes the mortgage at law as well as in equity. The mortgage is but a chattel interest. The right to the money passes to the personal representative of the mortgagee, and his receipt of the debt is good against the heir. The wife of the mortgagor is dowable, and of the mortgagee is not, even after forfeiture. The estate mortgaged may be sold to pay the mortgagor's debts, but not for the debt of the mortgagee. The debt cannot be separated from the mortgage. The mortgagee, after forfeiture, may maintain an ejectment against the mortgagor, to recover the estate mortgaged, that he may have the benefit of the profits.

But the legal title pro forma is vested in the mortgagee, after forfeiture, for the sole purpose...