White v. Rush

• Decision Date: 31 October 1874
• Citation: 58 Mo. 105
• Parties: JOHN B. WHITE, Respondent, v. ALEX. W. RUSH, Appellant.
• Court: Missouri Supreme Court

58 Mo. 105

JOHN B. WHITE, Respondent,

v.ALEX. W. RUSH, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Marion Circuit Court.

A. W. Rush, for Appellant.

I. When the court declared that the sale and deed of Thompson to plaintiff were void, it had no power to proceed any further, except to remit the parties to their former status, the plaintiff not having asked the relief the court gave him. (Wagn. Stat., p. 999, ch. 110, Art. V, § 3; Am. Law. Reg., vol. 2, p. 721.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his action in ejectment to recover the possession of certain real estate set out and described in the petition.

The defendant, in his answer, denied the allegations in the petition, and set up as new matter, as an equitable defense, that the deed under which plaintiff claimed title was void; that the deed was executed by one Thos. E. Thompson by virtue of a sale made under a deed of trust executed by defendant and wife to Thompson as trustee to secure the payment of a debt owing by defendant to plaintiff; that the deed required that the trustee should give at least twenty days' notice of the time, terms and place of sale, and that only fifteen days' notice was given by the trustee. The answer then prayed that the sale and deed made by the trustee to plaintiff might be set aside, and for naught held and esteemed.

The replication was a denial of the new matter set up in the petition, and averred that the trustee complied with the terms of the deed in making the sale; but no new or additional relief was asked. Upon the issues thus framed, the case was submitted to the determination of the court.

The evidence clearly sustained the averment in the answer, and showed that the trustee, in executing the power, only gave fifteen days' notice of the time of sale, when the deed directly required twenty days' notice. The court so found and rendered its decree declaring the sale illegal and void, and that it passed no title.

The court then proceeded further and found that the plaintiff had paid certain taxes on the property after he purchased the same at trustee's sale, and that the defendant had not refunded them, nor had he paid any part of the note or interest which was due the plaintiff, and which was secured by a deed of trust. It therefore ordered, adjudged and decreed, that the deed be set aside, that the defendant have till a day therein prescribed, to pay the plaintiff the full amount of the note and...