Carson v. Blakey

6 Mo. 273 | Mo. | 1840

Lead Opinion

Opinion of the court delivered by

Tompkins Judge.

Carson, as administrator of Stephens, brought'his action of ejectment against Anderson in his lifetime; the death of Anderson being suggested on the record, Elakey and Love weie made parties as administrators. The judgment of the circuit court was given in favor of the deiendants, and to reverse that, judgment, Carson pio-:ecutes this writ of error in lliis court. The evidence in the case is, that in the life time of John Anderson, one George McDaniel became the security of said Andeivon for the sum of one thousand dollars, and that Anderson wi.-hing to secure said McDaniel from any lo^son that account, executed to him a mortgage for the land here sued for, with a power to McDaniel himself, to sell ihe premises on certain conditions in the mortgaged deed mentioned. McDaniel sold the land and Joseph Stephens, the plaintiffs intestate, became the purchaser. It is not contended that the conditions prescribed in the mortgage deed have not been com} lied with. The only contested point, is whether the mortgagor can consistently with law1, constitute the mortgagee a trustee for the purpose of selling this land, to raise money to pay the debt due to- the moitgagee himself from the mortgagor. On the part of the defendants in error it is contended, 1st. Thai under our law a mortgage with a power of sale in the mortgagee is void. 2nd. That the only method of obtaining title to the mortgaged premises is, with us, by a sale under a petition for a foreclosure. The act concerning mortgages, of February IStli 1825, found in Digest of 1825, ] age 5&3, provides, that in all cases of mortgages of land &c. where the mortgagee, his executors, administrators or assigns, shall file a petition in the office of the clerk of the circuit court of the county where the mortgaged premises lie, against the mortgagor, or his heirs, executors or administrators, &c., setting forth the instrument of writing containing the mortgage, and praying that the equity of redemption may be foreclosed, •and the mortgaged premises sold to .satisfy the amount then 4ue, the clerk shall issue a summons requiring the defendant *275to appear &c., the cause then proceeds, as do other causes in the circuit court, with this exception,—that no sale shall be made within nine months after filing the petition. T-hence it is inferred that in every case of a mortgage the mortgagee must jroceed by filing his petition in the circuit court to procure a sale of the mortgaged premises; this is, in my opinion, a mistaken view of the legislative will. No restrictions are imposed by law on the power of alienating lands in Missouri. On the contrary, as they are here easily obtained, every facility is afforded to the owner to alienate, in order that they may better serve his purposes, when he thinks he can better his condition by alienating, and our Legislature, have interposed to remove many of the obstacles which the courts of chancery in England, by their own au thority,havec¡e ifed,to prevent a forfeiture of the mortgaged premi ¡es by a failure of the mortgagor to pay t.;e money due on the mortgage at the appointed day. It is true, as contended in argument, that the law still deprives l he borrower of money of the power to bind himself to pay a greater interest than ten per cent per year, and might, perhaps, with equal propriety, restrain the power of alienating lands; but the legislative power has not deemed it expedient to do so it has simply declared, that when the mortgagee dec., shall file the petition, these proceedings to enable him to collect his money, shall take place, leaving individuals at liberty to settle their own business after their own way, when they choose so to do. For neither the sheriffs, nor the clerks appear to be such favorites with the legislature, that mortgagor and mortgagee should be compelled to go into court in order to contribute to their emoluments, nor does the policy of our constitution and laws render the support of a landed aristocracy so necessary, that courts of law here, should, like the courts of chancery in England, outstrip the legislature in zeal to restrain the alinenation of real estate. It not appearing then, that this mortgage deed was improperly obtained by McDaniel, from the deceased, John Anderson, the intestate of the defendants in error, I see no reason why, in a court of law, it should not be held valid.— The regularity of the proceedings under the deed cf inort-*276gage have not been questioned. The judgment of the circuit court ought then, in my opinion, to be reversed, the President of the court concurring in that opinion the judg ment is reversed, and the cause remanded for furiher proceeding.

A deed of ■ mortgage with a power of sale in the mortgagee, is valid iri this state , and a sale by the mortgagee, if made in pursuance of the provisions of the deed, vests in Iho purchaser a valid title. Xapton judge (lissrutlng.



Dissenting Opinion

Dissenting opinion of

Napton Judge.

I arn not satisfied, that in this state, a person should be allowed to unite in himself the character of mortgagee and trustee with powers of sale; the practice has obtained in England, but has grown up in comparatively modern times. The same practice has been sanctioned by legislative provision in New York, but has been repudiated in Virginia for reasons, which appear tc me entitled to great weight.— Deeds of trust have so commonly obtained, in this country, as to enable the creditor, who is desirous of avoiding the delays of procuring a foreclosure, to attain all the ends of a security without a resort to court. But in those deeds the creditor cannot unite in himself the inconsistent character of trustee. 1 incline, therefore, to the opinion that the judgment be affirmed.