West v. Spencer

• Decision Date: 29 November 1911
• Citation: 238 Mo. 65,141 S.W. 586
• Parties: WEST v. SPENCER.
• Court: Missouri Supreme Court

141 S.W. 586

238 Mo. 65

WEST v. SPENCER.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. MORTGAGES (§ 341)—TRUST DEEDS—SALE —PERSON ENTITLED TO MAKE.

Under a trust deed, providing that the trustee, or, in case of his absence, death, or disability,

"the then acting sheriff" of the county, at the request of the legal holder of the note, may proceed to sell the property, the sheriff in office at the time the trust deed is foreclosed alone has power to make the sale, and not the one holding office at the time of default, or when the original trustee is disabled, etc.

2. COURTS (§ 87)—RULES OF DECISION.

It is a commendable rule for courts not to decide, in a given case, what need not be determined for its decision; such rule tending to exclude obiter.

3. APPEAL AND ERROR (§ 1145)—DISPOSITION.

A judgment for defendant cannot be affirmed and plaintiff's appeal dismissed at the same time, so that, upon affirming such judgment, a motion to dismiss the appeal will not be considered.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Granville West against John T. Spencer. From a judgment for defendant, plaintiff appeals. Affirmed.

J. M. McPherson, for appellant. Charles L. Henson and John C. Turk, for respondent.

LAMM, J.

Ejectment by West for 25 acres of land in the southwest corner of the S. W. ¼ of the N. W. ¼ section 21, township 29, range 25, Lawrence county, described by metes and bounds. Ouster is laid as of the ____ day of January, 1907. Cast below on a trial on the merits, plaintiff comes up by appeal.

As presently appearing, there is but a single question in the case, and that apart from the pleadings. Hence they may be put to one side.

Plaintiff is the common scource of title. On May 2, 1896, he and his wife conveyed the land to a Dr. Paris, as trustee, to secure a note for $97.40, due Spaulding and Miles or order, maturing on December 1, 1898, with interest at 8 per cent. from maturity. This deed of trust was subject to a prior one in favor of the Central Life Insurance Company, both duly spread of record. Dr. Paris was then a resident of Lawrence county, and continued to be such resident until the note came due, and for some time thereafter, when he removed to Polk, and took up his residence in the latter county. At the time of such removal and change of residence, John Manlove was sheriff of Lawrence, and continued to hold that office for some time; the secured note being then in default. At the expiration of his term as sheriff, he remained a resident of Lawrence county, and lived there at the time said junior deed of trust was foreclosed. Some time before the foreclosure, John A. Connor became sheriff of Lawrence county, and was acting as such at the time of such foreclosure. At a certain time after his removal, Dr. Paris refused, in writing, to act in the capacity of trustee, and execute the powers donated by the deed. Thereupon Connor, at the request of the legal owner of the secured note, made due advertisement and sale. At that sale, in 1904, one Murray was the best and last bidder, and the land was knocked down to him under the hammer, and the deed of trust was thereby satisfied. Thereat Connor executed a trustee's deed to Murray, with apt narrations, and in due form. This deed was spread of record in Lawrence county. Thereupon Murray conveyed by warranty deed, duly executed and put of record, to defendant Spencer, who in turn entered upon the land, and has since that time enjoyed the possession and usufruct thereof, claiming to own it under said trustee's deed and the conveyance from Murray. Some three years later, West brought the suit at bar.

Besides relying on a legal title, there are equities, pleaded by Spencer, arising from his payment of the first mortgage, taxes, etc., but these equities need no attention, unless West is entitled to recover. He is not entitled to recover, if Connor, as acting sheriff at the time of foreclosure, was authorized by the terms of the deed of trust to stand in the shoes of Paris, as trustee, and execute the power of sale therein created and donated. Whether he, as "then acting sheriff," or Manlove, sheriff at the time the note became due and Paris changed his residence, had power to foreclose and convey, is the determinative question in the case.

The...