Watson v. Hawkins

• Decision Date: 31 May 1875
• Citation: 60 Mo. 550
• Parties: HENRY WATSON, Appellant, v. C. C. HAWKINS, et al., Respondents.
• Court: Missouri Supreme Court

60 Mo. 550

HENRY WATSON, Appellant,

v.C. C. HAWKINS, et al., Respondents.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Collins & Loan, for Appellant.

I. The right of plaintiff to the note was that of owner by assignments indorsed on the note, and incident to this was the right to have the mortgaged property sold to pay the debt specified in the note. (1 Hill. Mort., 238, and cases cited in note f.; Jackson vs. Bronson, 19 Johns., 325.)

B. R. Vineyard, for Respondent Hawkins.

I. A deed of land from the mortgagee is not an assignment of the mortgage. (Peters vs. Jamestown, 5 Cal., 334;Hill. Mort., 4 ed., pp. 236-7; Wilson vs. Troup, 2 Cow., 195.)

Bennett Pike, for Respondents Patterson and Massie.

I. Watson conveyed all his right, title and interest in the land to Patterson, who thereby acquired the right of an equitable assignee of the mortgage. (Jackson vs. Bowen, 7 Cow., 13; 10 Johns., 480; 2 Johns., 87; Johnson vs. Houston, 47 Mo., 227; Walcop vs. McKinney's heirs, 10 Mo., 229; Robinson vs. Ryan, 25 N. Y., 320.)

SHERWOOD, Judge, delivered the opinion of the court.

Action to foreclose a deed of trust to certain lands in Holt county. On application of defendant Hawkins, Patterson and Massie were served with process, and made additional parties defendant.

By the amended petition, in addition to the ordinary allegations, it appeared that Massie was in possession of the premises.

Hawkins filed his separate answer, wherein he alleged payment of the note, to secure which the conveyance was made; that plaintiff, in order to cheat and defraud him out of his land, had contrived a sham sale thereof in 1863, and obtained a deed therefor from the trustee, one Smith M. White, although he was out of the State when the sale occurred; that in order to better effectuate his fraudulent purpose, the plaintiff, in 1864, commenced a suit in the Holt Circuit Court to foreclose the deed of trust, where, without appearance by defendant, or service on him, either actual or constructive, judgment of foreclosure was rendered, and the property of defendant again sold, plaintiff again becoming the purchaser at a nominal consideration, although the land was very valuable; that having obtained a deed from the sheriff also, for the land thus sold, in the year 1865, he went into possession thereof, and continued to use and enjoy its rents and profits until 1868, when he sold and conveyed the same by deed of geneeral warranty to defendant Patterson, who, in the same year, sold and conveyed, with the exception of fourteen acres, the land in controversy, to defendant Massie; that the rents and profits of the premises after satisfying the mortgage debt, amount to several thousand dollars, as to which an accounting is asked, and that the trustee's deed and others of like character, encumbering and casting a cloud upon the title, be set aside, etc., etc.

The reply of the plaintiff was in effect a denial of the new matter contained in the answer.

The defendant Massie admitted his possession of the land, but alleged that he had good title thereto, acquired under the trustee's and sheriff's sale, through the plaintiff as purchaser at such sale; and through Patterson to himself by mesne conveyances, and averred the validity of all the proceedings which resulted in the sale, at which the plaintiffs bought, and thereby he, the defendant Massie, had acquired all the right, title, interest or estate of the plaintiff in said land. Massie also put in issue the allegations of that portion of defendant Hawkin's answer, looking to affirmative relief, and reiterated the validity of his title to the premises in dispute.

The defendant Patterson filed an answer similar to that of defendant Massie, to that portion of defendant Hawkins' answer in the nature of a cross-bill.

Hawkins then filed a denial of those portions of the answers of Patterson and Massie which controverted the truth of the allegations of his answer. In reply to the new matter contained in defendant Massie's answer, the plaintiff denied the validity of the trustee's sale under which he purchased; and as to the sale under the judgment of foreclosure, he averred he “did not know” whether the court rendering that judgment had jurisdiction or not, and submitted that matter to the court for adjudication.

Thereupon, Massie and Patterson, on the ground that the pleadings showed that the plaintiff was not entitled to any judgment against the defendants, moved for judgment on the pleadings. Their motion was successful and plaintiff has appealed from the dismissal of his suit.

The statement in the plaintiff's reply, that he “did not know,” etc., was insufficient as a denial of the allegations of defendant Massie's answer, as the reply in effect admitted that the court had jurisdiction.

Our statute, (Wagn. ...