Walters v. Senf

• Decision Date: 08 May 1893
• Parties: Walters v. Senf et al., Appellants
• Court: Missouri Supreme Court

22 S.W. 511

115 Mo. 524

Walters v. Senf et al., Appellants

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from Howard Circuit Court. -- Hon. John A. Hockaday, Judge.

Defendants appeal 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 out lot 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 eighty-two and one-third feet off the south end of lot number 29, and afterward, to-wit, on the twentieth 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 out lot number 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 fourteenth 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 $ 100, 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.

Affirmed.

Samuel C. Major for appellant.

(1) The court erred in, first, not hearing evidence in support of defendant's equitable defense. Allen v. Logan, 96 Mo. 591; Ledbetter v. Ledbetter, 88 Mo. 60. (2) The court erred in admitting in evidence the record of the county court showing the foreclosure of the mortgage, and the order of sale made by the Howard county court. Said foreclosure and order of sale were absolutely null and void, no such authority being conferred upon the county court by statute. County courts can exercise only such jurisdiction as is especially conferred by statute. State ex rel. v. Harris, 96 Mo. 29; State ex rel. v. Hopkins, 87 Mo. 524; State ex rel. v. Shortridge, 56 Mo. 126; Jefferson County v. Cowan, 54 Mo. 234. (3) The court erred in admitting in evidence the sheriff's deed made under said foreclosure to the plaintiff. Henaker v. Shough, 55 Mo. 472; Jones v. Mack, 53 Mo. 147. (4) It is the settled law of this state, that an equitable title well pleaded is a good defense to an action of ejectment based on the legal or paper title. Tibeau v. Tibeau, 19 Mo. 78; Carman v. Johnson, 20 Mo. 108; Hayden v. Stewart, 27 Mo. 286; Harris v. Vinyard, 42 Mo. 568; Johnson v. Houston, 47 Mo. 227; Ellis v. Railroad, 51 Mo. 200; Barker v. Cicle, 60 Mo. 258; Collins v. Rogers, 63 Mo. 515; Sebree v. Patterson, 92 Mo. 457; Allen v. Logan, 96 Mo. 591; Powell v. Adams, 98 Mo. 598; Benne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 294. And it is equally the settled law of this state, that where one has the equitable title to land, and another obtains the legal or paper title with knowledge of such equitable title, the former has the superior equity. Pike v. Martindale, 91 Mo. 268; Widdicombe v. Childers, 84 Mo. 382; Sensenderfer v. Kemp, 83 Mo. 581; Martin v. Jones, 72 Mo. 23; Barksdale v. Brooks, 70 Mo. 197; Nesbit v. Neill, 67 Mo. 275.

William M. Williams, P. S. Rader and T. S. Dines for respondent.

(1) The court below properly held that the marginal entries, purporting to release the property in controversy from the lien of the mortgage, were absolute nullities. A release entered by one having no authority, is void. The county court alone was authorized to lend the "Road and Canal Fund," and the statute enjoined upon that court to take care "in every instance to require good and ample security." The county treasurer had no right to determine that a part of the security taken by the county court could be safely released, nor had the presiding judge of the county court any such power. 2 Revised Statutes, 1889, secs. 7778, 7782; Knox Co. v. Goggin, 105 Mo. 182; Joerdans v. Shrimp, 77 Mo. 383; Lakenan v. Robards, 9 Mo.App. 179. (2) The circuit court rightly ruled, that a custom upon the part of the county officers to enter such satisfaction would not bind the county, and would not validate their action in making the releases in controversy. Such a custom could not prevail over the law. Knox Co. v. Goggin, 105 Mo. 182. (3) The trial court also properly held, that the action of the county court could only be shown by its record. Maupin v. Franklin Co., 67 Mo. 327; City of Kansas v. Railroad, 81 Mo. 285; Johnson Co. v. Wood, 84 Mo. 489. (4) If the releases were void, then the notice given at the sheriff's sale was immaterial and rightfully excluded. In fact it was wholly immaterial in any event. Lee v. Clark, 89 Mo. 553; Hagerman v. Sutton, 91 Mo. 519. (5) The above questions, in regard to the validity of the releases were the only matters submitted to and decided by the trial court. The defendant cannot in this court be permitted to change his position and raise questions not passed upon by the court below. Walker v. Owen, 79 Mo. 563; Bank v. Armstrong, 62 Mo. 59; Whetstone v. Shaw, 70 Mo. 575; Agricultural Ass'n v. Delano, 37 Mo.App. 284; Mfg. Co. v. Mfg. Co., 100 Mo. 325. (6) The statute did not prescribe the form of the mortgage. Any instrument therefore properly conveying the land as security for the debt was sufficient. The county court, by express provision of the statute, had power to loan the money. Revised Statutes, 1889, sec. 7782, p. 1810. A mortgage good at common law and containing a power of sale by the mortgagee or agent, is valid. Mann v. Best, 62 Mo. 491. (7) The mortgage conferred the power upon the acting sheriff of Howard county to sell the property upon default in the payment of the debt. The parties agreed that the sheriff might sell upon default in the payment of the debt, and this was the only condition necessary to the sale. 2 Jones on Mortgages, secs. 1778, 1779; Woods v. Augustine, 61 Mo. 46; McKnight v. Wimer, 38 Mo. 132.

Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action of ejectment for certain land in the city of Fayette, Missouri. 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 co-defendant, 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 hand bills 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 shall be effectual to all intents and purposes as if such sale were made by virtue of a judgment of court of competent jurisdiction, foreclosing said mortgage."

There was a default in meeting the bond and the property was advertised and sold according to the terms of the mortgage, June 11, 1888. At that sale plaintiff bought the land for the sum of $ 567, and received a sheriff's deed on which she now relies.

Before the sale by the sheriff the county court had made formal orders, first,...