Walters v. Senf

• Decision Date: 08 May 1893
• Citation: 22 S.W. 511,115 Mo. 524
• Parties: WALTERS v. SENF et al.
• Court: Missouri Supreme Court

22 S.W. 511

115 Mo. 524

WALTERS v. SENF et al.

Supreme Court of Missouri, Division No. 1.

May 8, 1893.

COUNTY FUNDS — LOAN BY COURT — SECURITY — RELEASE — PROOF OF CUSTOM — DEFENSE IN EJECTMENT.

1. The county court, in making a loan of part of the road and canal fund, has authority to secure payment by taking a mortgage with power of sale, and in case of default may cause the power of sale to be exercised.

2. A grant of power construed to include a grant of such incidental powers as may be necessary to make the principal grant effective.

3. An order of the county court held not invalidated because accompanied with other directions in excess of its authority.

4. Where a county court, composed of several members, has control of a particular fund, a release of part of the security for a loan from that fund cannot be validly made by one of the judges or the county treasurer without any action by the court.

5. In ejectment, an "equitable defense" (interposed by the answer) discussed in the third paragraph of the opinion, and held to present no equity.

6. Proof of a custom is not permissible to

enlarge the powers of officers whose authority is defined by statute.

(Syllabus by the Judge.)

Appeal from circuit court, Howard county; John A. Hockaday, Judge.

Action by Elizabeth Walters against Otto Senf and Jacob Fisher. Judgment for plaintiff. Defendants appeal. Affirmed.

The facts appear in the following statement by BARCLAY, J.:

Defendants appealed from a judgment for plaintiff in ejectment. The "equitable defense" referred to in the opinion is thus stated in the answer: "That on September 27, 1880, one A. M. Fielding borrowed of Howard county the sum of $600, for which he gave his bond, and giving to the county a mortgage to secure said debt on lot 3 or 13, in Fugate's addition to the city of Fayette, and also on lots 1 and 2, or 14 and 15, Fugate's addition to the city of Fayette, and outlot 29. That this defendant, as treasurer of Howard county, had in his custody and under his control and possession the said bond executed by said A. M. Fielding. That upon the payment by said Fielding of $50 of the principal of said bond, December 19, 1882, he, as treasurer of Howard county, released on the margin of the record in which said mortgage to the county was recorded, said lot 15 and 82 1/3 feet off the south end of lot No. 29; and afterwards, to wit, on the 20th of March, 1884, H. A. Norris, as presiding judge of the Howard county court, upon the payment to him of $100 of the principal of said bond by said Fielding, released upon the margin of the record the balance of the outlot No. 29. That in the month of March, 1884, this defendant bought of A. M. Fielding the land in controversy, and said Fielding made him a deed to the same, all of which facts are and were matters of record at the time of plaintiff's pretended purchase of the land in controversy. Defendant for further answer and for further defense states that plaintiff ought not to be permitted to say that on the 14th day of June, A. D. 1888, she was entitled to possession of the premises sued for, and that the defendant entered into and wrongfully withholds from plaintiff the possession thereof to her damage in the sum of one hundred dollars, because this defendant says plaintiff was fully advised that the land in controversy had been released from the mortgage given the county; and that at the time and on the day said county mortgage of said Fielding was closed out, and the property sold by the sheriff, this defendant publicly announced that this property was released, and that the purchaser would only get lots 1 and 2, or 13 and 14; and that prior to the day of sale the plaintiff had a conversation with said Fielding, the mortgagor, with reference to the purchase of his property that was mortgaged to the county, and well understood from him that he only owned 1 and 2, or 13 and 14, and that the other property had been released, and was not covered by the mortgage. Defendant states that he is in the lawful possession of the land described in plaintiff's petition, claiming the title thereto under good and sufficient deed of conveyance thereof; and now, having fully answered, asks that he be discharged with his costs," etc. The other facts appear in the opinion of the court.

Sam C. Major, for appellants. Perry S. Rader and William M. Williams, for respondent.

BARCLAY, J.

This is an action of ejectment for certain land in the city of Fayette, Mo. The petition is in the usual form; the answer, a general denial, with an "equitable defense," which is fully shown in the statement introductory to the report of the case. The new matter was denied by plaintiff's reply. The cause was tried by the court. The substantial defendant is Mr. Fisher. His codefendant, Mr. Senf, is his tenant in possession. Both parties trace their claims of title to Mr. A. M. Fielding, who, in September, 1880, borrowed of Howard county $600 of the road and canal fund, and gave a mortgage to the county to secure his bond for that sum and interest, payable on or before December 31st of that year. The mortgage was duly acknowledged, and recorded shortly after its date. It provided that, in default of payment of the bond, according to its tenor, "the then sheriff of said county shall have power to, and may, without suit on this deed of mortgage, proceed and sell the property herein conveyed and mortgaged, first giving twenty days' public notice of the time, terms, and place of sale by publication in some newspaper printed and published in said county, if any such there may be; if not, then by six posted or written handbills posted up at public places in said county, at which sale the property shall be sold to the highest bidder for cash in hand; and the said sheriff shall make an absolute conveyance in fee of the property thus sold to the purchaser or purchasers thereof, which...