Williams v. Brownlee

• Decision Date: 16 June 1890
• Parties: WILLIAMS v. BROWNLEE.
• Court: Missouri Supreme Court

13 S.W. 1049

101 Mo. 309

WILLIAMS v. BROWNLEE.

Supreme Court of Missouri.

June 16, 1890.

MORTGAGES — MERGER — FORECLOSURE — SWAMP LANDS.

1. Where one who has purchased swamp land from a county goes into possession, and executes a mortgage thereon to secure school money borrowed from the county in order to pay the purchase price, a deed subsequently given him by a commissioner appointed by the county to convey swamp lands to those who have paid the purchase money does not operate as a merger or satisfaction of the mortgage.

2. In an action by the county to foreclose such mortgage, failure to bring in as defendant a creditor whose debt is secured by a subsequent deed of trust on the land can have no other effect than to allow those claiming through a sale under that deed to redeem from the foreclosure.

3. In a deed from the county for such land after the foreclosure, a recital that the grantee therein had become the purchaser and paid the price in full, with interest, does not tend to show that the land was sold to him privately, but is consistent with a public sale, as required by Rev. St. Mo. 1879, § 7115.

Appeal from circuit court, Livingston county; JAMES M. DAVIS, Judge.

S. P. Huston and H. Lander, for appellant. E. R. Stephens, for respondent.

BLACK, J.

This is an action of ejectment to recover 120 acres of land in Linn county. The defendant claims no interest in 40 acres of the land sued for, so that the controversy is over 80 acres. The case was tried in Livingston county on a change of venue, and without a jury. Defendant appealed.

The evidence discloses these facts: The land was a part of the swamp land belonging to and duly conveyed to Linn county. In 1856 the county sold the same to James Pace, but made no deed to him at that time, though he took possession. To pay the balance of the purchase price, Pace borrowed school moneys from the county, and to secure the payment thereof executed to the county a mortgage on the land, dated the 6th March, 1871. The county, by its commissioner, George N. Martin, conveyed the land to Pace by a deed dated 11th July, 1876. This deed contains a recital that Martin was appointed commissioner by an order of the county court, made at its February term, 1871, to convey swamp and overflowed lands to the purchasers upon payment of the purchase money; that James Pace purchased the land in suit on the 25th February, 1876, at the price of $246; and that he had paid the purchase price. As before stated, this deed is dated 11th July, 1876. After the date of the mortgage, and before the date of the commissioner's deed, namely, on the 9th August, 1873, Pace executed a deed of trust on the property to secure a debt owing by him to Thomas D. Price, and the defendant, Brownlee, became the purchaser at a sale made under this deed of trust in 1881. In 1879 the county commenced a suit in the circuit court to foreclose the mortgage executed to it by Pace, dated 6th March, 1871, and such proceedings were had that the mortgage was foreclosed. The county became the purchaser at the sale made under the decree of foreclosure, and received a deed dated the 10th June, 1880. The county, by B. A. Jones, commissioner, conveyed the property to Thomas B. Beckett by a deed dated May 16, 1881, and Beckett conveyed to plaintiff by a deed dated 3d February, 1884. Pace testified that he purchased the land in 1856; took possession and paid interest on his notes given for the purchase price; that to pay these notes he borrowed the school money and executed his mortgage to the county. The evidence of Commissioner Martin is that Pace paid for the land out of the school moneys borrowed from the county, and he says he does not...