146 Mo. 361 | Mo. | 1898
The facts in this case are that Barnett, the owner of a farm, in Bates county, borrowed $1,250 of the Western Farm Mortgage Trust Company, of Lawrence, Kansas, and gave his bond for that amount and coupon interest notes payable semiannually. The mortgage company sold and assigned the bond and guaranteed the principal and interest to one Loomis of New York. Interest coupons numbered 2, 3, 4 and 5 became due and Loomis indorsed them for collection and deposited them in his bank, the Manufacturer’s National Bank of Brooklyn, and the interest was paid by the Western Farm Mortgage
Stress is laid in the answer upon the fact that Loomis did not request a sale to be made. Two answers may be made to this contention.
First. The deed of trust does not make it essential for him to do so, but simply provides, that “if default be made in the payment of said bond or any part thereof or any of the coupons thereto annexed when the same shall become due,” then the trustee, or in case of his disability or refusal to act, the sheriff of Bates county, may proceed to sell the property. It was not essential that all the beneficiaries should unite in a request to sell. The deed of trust stood as a security for the debt and coupons, and it was sufficient to authorize a sale that there was a failure to pay these coupons 2, 3, 4 and 5. The guaranty of the coupons in no way released the mortgagor, it simply rendered the mortgage company personally liable.
Second. The deed of trust was a security for the. coupons as much as the bond, and the mortgage company was clothed with authority to order the sale when they were not paid whether it is regarded as agent of Loomis, or as the owner, by virtue of the reindorsement to it, and its payment, of the coupons. Wood v. Augustine, 61 Mo. 46. Having the apparent authority in the one instance, and the real authority in the other, to order a sale, and having directed it, and the author
In general when a person acts as the agent of another who is known as the principal, his acts and contracts within the scope of his authority are considered the acts of his principal. As to third persons the sheriff of Bates county, the substituted trustee, was the agent of Barnett, the grantor in the deed of trust, and of Loomis, the beneficiary and holder of the bond and interest coupons. Sherwood v. Saxton, 63 Mo. 78; Goode v. Comfort, 39 Mo. 313; Carter v. Abshire, 48 Mo. 300; Chesley v. Chesley, 49 Mo. 540; Hull v. Pace, 61 Mo. App. 117.
He was also trustee for both the mortgagor and the mortgagee. In making the sale he was unquestionably acting within the scope of the authority conferred by the deed of trust. As to all persons without notice to the contrary his representation that the interest coupons 2, 3, 4 and 5 were due and unpaid, was the statement of his two principals, and binding upon them. But in addition to this, by statutory enactment in this state (section 7103, R. S. 1889), the recitals in his deed are prima facie evidence of the truth of the facts stated. In his deed the sheriff recited that Barnett had defaulted in the payment of the interest coupons Nos. 2, 3, 4 and 5; that the original trustee had refused to act, and that the sale was made in pursuance of the power
Having found that Canterbury and those' claiming under and through him were innocent purchasers for value and without notice, and all the other material facts appearing in the written documents, we think the learned circuit court erred in holding that no title passed because Mr. Loomis testified the interest was not in default. While Loomis so testified his statement must be considered with his other testimony in that connection in which he distinctly says he reindorsed these interest coupons “for collection,” and they were in fact paid by the Western Mortgage Company. He does not testify that Barnett, the mortgagor, paid them, nor that he was in default. His testimony does not rebut the prima facie recital of the trustee that Barnett was in default. Being under contract to collect these coupons, having received them by reindorsement for that purpose, it must be held that the mortgage company was authorized to declare the forfeiture, and
It follows the judgment must be and is reversed with directions to enter judgment for plaintiff.