Whitman v. William Taylor & Caldwell Cnty.

• Decision Date: 31 May 1875
• Citation: 60 Mo. 127
• Parties: ROLLIN G. WHITMAN, Defendant in Error, v. WILLIAM TAYLOR AND CALDWELL COUNTY, Plaintiffs in Error.
• Court: Missouri Supreme Court

60 Mo. 127

ROLLIN G. WHITMAN, Defendant in Error,

v.WILLIAM TAYLOR AND CALDWELL COUNTY, Plaintiffs in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Caldwell Common Pleas.

Crosby Johnson, for Plaintiff in Error.

I. The county, as mortgagee of the lands, had the right t hold possession as against the mortgagor and those claiming under him, after condition broken, until the debt was satisfied. (Hubble vs. Vaughan, 42 Mo., 138; 38 Mo., 120; 49 Mo., 244; Johnson vs. Houston, 47 Mo., 227.)

II. Neither the plaintiff, Davis, or the defendants in the suit, having been parties to the suit before the justice of the peace, the plaintiff cannot object to the proceedings on account of the irregularities complained of. (Winston vs. Affalter, 49 Mo., 263; Hardin vs. Lee, 51 Mo., 241; Ellis vs. Jones, 51 Mo., 180.) The objection to the process of the Circuit Court, on account of the constable's return to the execution before the justice, is not available in this action. (Murray vs. Loften, 15 Mo., 62; Morton vs. Quinby, 45 Mo., 388; Waddell vs. Williams, 15 Mo., 216; Cabell vs. Grubbs, 48 Mo., 353.)

M. A. Low, with A. W. Mullins, for Defendant in Error.

I. It has been held by this court that where there has been a defective foreclosure of a mortgage, the purchaser at the sale has sufficient color of title under the mortgage to defend ejectment against all except the mortgagee and those claiming under him. (See Jackson vs. McGruder, 51 Mo., 55; Jones vs. Mack, 53 Mo., 147; Honaker vs. Shough, 55 Mo., 472.) But these cases recognize the doctrine that a stranger to the mortgage cannot protect his possession under it. (Woods vs. Hilderbrand, 46 Mo., 284.) In the case at bar, the defendant, Taylor, was a stranger to the mortgage, if any ever existed. He did not purchase at a foreclosure sale. In point of fact, there was no sale under the foreclosure proceedings.

II. The court below committed no error in excluding the deed of the sheriff of Caldwell county to Tilton Davis. This sale was under a transcript which showed that the execution, issued by the justice who rendered the judgment, was prematurely returned, and 2,180 acres of valuable land in Caldwell county, worth at least $20,000, was sold by the sheriff and bought in by the attorney for the plaintiff in that judgment at the nominal sum of $13.50 (twenty-five cents per tract). The purchaser treated the sale as a nullity and subsequently made a quit-claim deed to the same lands, for a like mere nominal amount. (See Hann. & St. Jo. R. R. Co. vs. Brown, 43 Mo., 294, and authorities cited on 5th point of the brief of Messrs. Carr, Hale & Oliver.)

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment, commenced in the Common Pleas Court of Caldwell county, to recover a tract of land in the petition described.

The petition is in the usual form. The action was brought against William Taylor only, but, on his motion, the county of Caldwell was permitted to appear and become a party to the action.

The defendant, Taylor, filed a separate answer, in which he denied the allegations of the petition and also claimed that he was the owner of the land in fee.

Caldwell county also filed its separate answer, in which it, after denying the right or title of the plaintiff, as a second defense to the action, averred that on the 1st day of November, 1859, one James E. Johnson was the owner, in fee simple, of the land in controversy, and that on said day he borrowed of said defendant the sum of $416, which belonged to the school fund of school township, No. 9, in said county; and that said Johnson, at that time, executed to defendant, for the use of said school township, his bond, by which he promised, for value received, to pay the defendant, for the use aforesaid, said sum of $416 with interest thereon at the rate, etc., twelve months after date--which said bond was approved and filed by the County Court of said county; but that said bond was afterwards destroyed by fire, etc.; that at the time of the execution of said bond, said Johnson executed and delivered to said county a deed of mortgage, conveying to said county the premises in question, which said mortgage recited said bond, and contained a condition to the effect that if default was made in the payment of the principal or interest due by said bond when the same became due, the sheriff of said county might, without any suit, proceed to sell the mortgaged premises or any part thereof to satisfy said bond, and make an absolute conveyance of said land to the purchaser, which should be as effectual as a sale under a judgment of foreclosure, etc.; that the said deed of mortgage was also burned and destroyed at the time the court house of said county was destroyed by fire in March, 1860; that said Johnson failed and neglected to pay the said sum of money due by said bond, or the interest thereon, when the same became due; that afterwards said county, by its agents, took possession of said land by virtue of said mortgage and delivered the possession thereof to the said defendant, Taylor; that afterwards, on the 3rd day of September, 1863, the said county commenced a suit in the Circuit Court of Caldwell county, against said Johnson, to recover said debt and to foreclose said mortgage, and on the 5th day of April, 1866, the said Circuit Court gave judgment against said Johnson, on said bond, for $731.36, and foreclosed the equity of redemption of said Johnson in and to said land, and ordered the same to be sold for the payment of said judgment and costs of suit; that an execution was issued on said judgment, and said lands by virtue thereof were sold, and said county of Caldwell being the highest bidder for the same, they were sold to said county for the price of $435; and that the balance of said judgment remains due and unpaid; that on the 25th day of March, 1868, said county sold and conveyed said land to said defendant, Taylor, by deed of that date, and delivered the possession thereof to him, and that he had ever since held the possession of said land under said county, etc.

This second defense set up by the answer of Caldwell county was stricken out on motion of the plaintiff on the grounds that it constituted no defense to plaintiff's action; and that the same matters could be shown in evidence under the denials in the previous part of the answer. The defendant at the time excepted.

Issues were made on the second defense set up in the answer of the defendant, Taylor.

The case was tried without a jury. It was admitted by the parties, at the trial, that the land in controversy was entered from the United States by one John A. Miller; that Miller conveyed said land to James E. Johnson, in 1858 or 1859; that Johnson, on the 19th of April, 1869, made and delivered a deed of said land to plaintiff; that if plaintiff recovers in this action, his damages may be assessed at fifty dollars and the monthly rents and profits at ten dollars.

The defendants, on their part, read in evidence, 1st, a quitclaim deed from Tilton Davis to the defendant, Taylor, for the land in controversy. 2nd, A deed made by Crosby Johnson as commissioner of Caldwell county, dated March 25th, 1868, purporting to convey said land to defendant Taylor.

The last named deed was objected to by the plaintiff on the ground that Caldwell county had no interest in said land which could be conveyed. There is nothing in the record to show that the objection was ever disposed of.

The defendant next offered in evidence a deed made by the sheriff of Caldwell county, dated the 5th day of April, 1866, purporting to convey the land in controversy to Tilton Davis as the property of James E. Johnson. This deed recites that on the 6th day of September, 1862, one Stacey Bancroft (and other persons named) before one Charles McRea, a justice of the peace for Caldwell county, recovered against James E. Johnson a judgment for $119.38; that afterwards, on the 13th day of April, 1863-64, a transcript of said judgment was filed in the office of the clerk of the Circuit Court for said county and was then recorded and entered on the docket, etc.; that by a certificate of said justice, filed in said clerk's office, on the 13th day of April, 1863, it appears that an execution issued on said judgment, directed to the constable of the proper township, against the goods and chattels of said James E. Johnson, which execution had been returned “not satisfied, no goods or chattels of said defendant being found,” etc.; that after said return, on the 9th day of March, 1865-6, an execution was issued by said clerk on said judgment or transcript and delivered to the sheriff, etc. The deed then proceeded in the usual form.

The plaintiff objected to the introduction of this deed, and for the purpose of showing that said deed was void and inadmissible in evidence, he offered in evidence the transcript filed by the justice in the clerk's office, together with the execution which had been issued thereon by the clerk of said Circuit Court and the return thereon, by which it appeared that the judgment was rendered by the justice, on the 6th day of September, 1862; that an execution was issued thereon on the 8th day of September, 1862, returnable in ninety days; that the execution was returned on the 5th day of December, 1862, showing that no property had been found by the constable on which to levy and make the money; wherefore, the execution was returned not satisfied. It also appeared by the recitals contained in the execution issued by the clerk; that the judgment had been rendered by the justice as it is hereinbefore stated, and that on the 13th day of April, 1863, a transcript of said judgment was filed in the office of the clerk of the Circuit Court of Caldwell county and recorded, etc.; that by the certificate of the justice, filed in said clerk's office on the 13th day of April, 1863, it appears that an execution issued on said judgment, directed to the constable of...