Wells v. Lincoln Cnty.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 424
• Parties: WELLS, Administrator, Plaintiff in Error, v. LINCOLN COUNTY.
• Court: Missouri Supreme Court

80 Mo. 424

WELLS, Administrator, Plaintiff in Error,

v.LINCOLN COUNTY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Norton, Martin & Dryden for appellants.

The foreclosure sale having been made during the term of the county court, and not during that of the circuit court, was an irregular one. R. S. 1855, p. 1425, § 30; Ib.,p. 1090, § 13; Ib., p. 746, § 45. The sale being irregular, did not work a foreclosure of Bailey's equity of redemption, but operated as an equitable assignment of the mortgage, and transferred to Gordon all the county's rights. Robinson v. Ryan, 25 N. Y. 325; Brobst v. Brock, 10 Wall. 533; Walker's Ch. Reps. 494; 7 Cow. 13; Honaker v. Shough, 55 Mo. 475; Jones on Mort., §§ 1678, 1679; Grapengether v. Fejervary, 9 Iowa 163; Anson v. Anson, 20 Iowa 56; Johnson v. Harmon, 19 Iowa 56; Douglass v. Bishop, 27 Iowa 216; Bank v. Abbott, 20 Wis. 570; Stark v. Brown, 12 Wis. 584; Olmstead v. Elder, 2 Sandf. (N. Y.) 325; Mabley v. Nave, 67 Mo. 550. The question of the statute of limitations affects only the amounts collected by the county on the bonds prior to August 31st, 1873, as the suit was filed within five years of that time. The statute did not apply to the amounts collected before that time, because, when collected, it became a trust fund, and besides, it could not begin to run until Magruder had notice that the county was collecting the money.

G. T. Dunn for respondent.

The mortgage debt was not assigned to Magruder by the payment of only a portion of it; there must be a payment of the debt to effect such a result. Mabley v. Nave, 67 Mo. 550. Plaintiff is estopped to recover by reason of his laches. Stevenson v. Saline Co., 65 Mo. 425; Wells v. Perry, 62 Mo. 576.

PHILIPS, C.

This action was begun in 1878 in the circuit court of Lincoln county. It was tried on the following agreed statement of facts:

“It is agreed by and between plaintiff and defendant that the following is a correct statement of the facts in this case, except as hereinafter stated, which said plaintiff and defendant agree to submit to Hon. W. W. Edwards, circuit judge of Lincoln county, as a special finding for his determination and judgment. 1st, It is agreed that on the 11th day of February, 1863, David Bailey executed to the county of Lincoln three several notes or bonds, one for the sum of $204.56, one for $958.32 and one for the sum of $614.45, each conditioned to bear ten per cent compound interest from date until paid. That for the purpose of securing said indebtedness the said David Bailey on the same day made, executed, acknowledged and delivered to said county of Lincoln a mortgage on certain lands therein described, amounting to 680 55-100 acres. That by the terms of said mortgage the sheriff of Lincoln county, on default being made in the payment of said debt, was authorized to sell said mortgaged premises upon being ordered so to do by the county court of Lincoln county. That the law in regard to said foreclosure required an order of sale to be made by the county court of Lincoln county--which order was to have the same force and be carried out by the sheriff in like manner as fieri facias on a judgment of foreclosure in the circuit court. (See R. C. 1855, page 1425, § 30, to which reference is made.) That there was a default made in the payment of the debt so secured by said mortgage; that the county court made an order and caused the same to be entered of record reciting the facts and directing the sheriff of Lincoln county to seize, levy on and sell the said real estate in said mortgage described, to satisfy the said mortgage debt and the costs thereof. That the sheriff of Lincoln county having been served with a copy of said order, duly certified, did by virtue of said order and the power and authority in him vested by said mortgage deed, levy on said property and advertise the same for sale, and on the 23rd day of September, 1864, at a regular term of the county court, did expose the same for sale to the highest and best bidder for cash; that the same was stricken off and sold to John B. Gordon for the sum of $200. That a deed was executed to him therefor and that said sale was approved by the county court. That the money received at said sale was paid into the county treasury and appropriated by the county court to the part payment of said notes, leaving a large amount still unpaid thereon. That afterward the said John B. Gordon transferred and assigned to Joseph P. Wilkinson all right, title and interest which he acquired by reason of said sale and purchase, who in turn sold and assigned the same to Henry Papin and that Henry Papin sold and assigned the same to Lloyd B. Magruder on April 21st, 1865. That said county of Lincoln has since said sale on the 23rd day of September, 1864, collected on said bonds and mortgage and appropriated to her own use various sums of money, the amount of said collections and the date thereof it is agreed are to be proved by the plaintiff. It is also agreed that the said bonds and mortgage were duly presented for allowance to the probate court of Lincoln county and were duly allowed and classified against the estate of David Bailey, deceased. That before the bringing of this suit the said Magruder departed this life and that Jeptha Wells was duly and legally appointed his administrator. Plaintiff contends that by reason of the facts herein, that said Magruder became the owner of said bonds and mortgage. Defendant denies that by reason of the facts set forth that plaintiff became the owner of said bonds and mortgage and contends also as further matter of defense that plaintiff had full knowledge that defendant was collecting said various sums of money on said bonds and mortgage and stood by and made no claim thereto, and that by reason thereof plaintiff is estopped from recovering in this suit and also pleads the statute of limitations as to all sums collected more than five years prior to the commencement of this suit, the defendant being required to introduce evidence to maintain said defenses of limitation and estoppel. If from the facts herein agreed to and the evidence introduced by plaintiff and defendant the court should find the issues as set forth by plaintiff for him, then it is agreed that judgment shall be entered for plaintiff for all sums collected with interest, except such as are barred by limitations, or unless the plaintiff is estopped by reason of his acts as set forth by defendant's attorney, or unless the title to said bonds and mortgage failed to pass by said sale. But if the court shall find the issues set forth by defendant then judgment shall be entered for defendant.”

The parties at the trial further agreed that the collections subsequently made by the county on the unpaid balance of said debt from Bailey, were as follows: In 1864, $97.47; in 1865, $632.20; in 1866, $1,107.02; in 1867, $83.72; in 1868, $217.65; in 1869, $176.64, in 1870, $176.46; in 1871, $176.46; in 1873, $1,000.27. This suit is to recover from the county these sums of money.

The circuit court found the issues for the defendant. The plaintiff, by writ of error, carried the case to the St. Louis court of appeals, where the judgment of the circuit court was affirmed. From this judgment the plaintiff has brought the case, on error, to this court.

I. The statute, section 13, page 1090, Revised Statutes 1855, under which the...