9 Mo. App. 77 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is au action of ejectment. Both parties claim under Michael Fitzpatrick. On May 29, 1872, Fitzpatrick agreed with B. J. Reilly, a real estate and loan agent, for a loan of
On September 26, 1876, the property was sold under the Schreiner deed of trust, and the defendant Kemper became the purchaser. On November 20, 1876, by direction of J. B. DeLaureal, or his agent, who still held the original note for $3,500, there was a sale under the first-mentioned deed of trust, at which the property was purchased by the plaintiff.
The principal question involved is, whether Reilly’s entry
The doctrine contended for by the defendants would place every holder of a deed of trust or mortgage-security completely at the mercy of any stranger who might choose to walk into the recorder’s office, and, describing himself as assignee of the mortgagee or cestui que trust, enter satisfaction on the margin of the record. There can be no law which would thus deprive a man of his property, without any contributory act or omission on his part. At the time of this marginal entry, Reilly was an entire stranger as to any ownership or interest in the deed of trust, or the notes secured by it. His name did not appear upon either, and he did not show himself to be in possession of the one or the other. Hartman and Fitzpatrick took upon themselves all risks as to the truth or untruth of Reilly’s representations of his authority to enter the satisfaction. Upon what principle should DeLaureal, the real holder of the notes and their security, be held responsible for this blind confidence, to which he was no consenting party, which he did not indorse or encourage, and of which, in fact, he was wholty ignorant? It is not shown that he misled anybodj^ hj a misrepresentation of the facts, or that he was silent when ho ought to have spoken. He was never called upon to speak.
The defendants insist that DeLaureal was bound to record his assignment of the notes and deed of trust, and that, having failed to do so, he is responsible for any error into which others may have fallen for want of the notice which such recording would have imparted. Such is not the law in Missouri. It has been decided over and over again that
At the instance of the plaintiff, the court, sitting as a jury, declared the law to be that, if Reilly was not, and DeLaureal was the owner and holder of the notes secured by the deed of trust, at the time of Reilly’s entry of satisfaction on the margin of the record, then the said entry of satisfaction by Reilly was invalid, and of no legal effect. This is a correct legal proposition, taken as it stands. But the defendants complain that the instructions should have -covered more -ground; that they should have declared the law upon the various points made by the defence; and because they failed to do so, the judgment should be reversed. The points alleged to have been thus ignored involved mixed questions of law and fact — such as, whether there was an estoppel against the plaintiff; whether the defendant was a bona fide purchaser, entitled to protection ; and others of similar character. If the exigencies of the defendant’s case required that upon these, or any other points, the court should declare the law applicable to the facts as'found, it was the privilege and duty of the defendants to offer such instructions as would fit their several hypotheses of fact. But they asked for no instructions at all. A trial court is not bound to give instructions demanded by neither party. It was the defendants’ own fault
Where the court, sitting as a jury, makes no declaration of the law applying to a given issue of fact, as to which there is. substantive testimony on both sides, the presumption is that the court correctly assumes the law governing that issue, and that its finding of the facts is in harmony therewith. It follows that there can be no disturbance by an appellate court of such a finding. An application of this rule excludes from our consideration nearly all the points elaborated in the carefully prepared brief for defendants. We must assume that, in so far as the defendant’s legal propositions are well founded, the court below recognized and adopted them; and that its adverse finding was upon the controverted questions of fact. Thus, as to the law points decided by the Circuit Court, there is here nothing for review; and as to the findings of fact, there having been testimony tending to prove either side of the issues, a well-established rule requires us to leave them undisturbed. Had the defendants asked for proper declarations of law, and had the court refused them, the result might be different.
It is argued for defendants that defendant Kemper was a purchaser in good faith at the sale under the second deed of trust, and therefore is entitled to be protected in his purchase. This is a non sequitur. Men lose, in all sorts of transactions, by their own mistakes or errors of judgment, committed in the utmost possible good faith. They must abide the natural consequences, unless the loss may be made to fall on some other person, who, by a wrongful act or omission, has induced the mistake or error. If Kemper is to be protected in his purchase, the plaintiff must lose ; and yet it is not shown that either she or DeLaureal, under whose trust she claims, was connected in the remotest degree with the false entry of satisfaction, or with any other cause moving Kemper to his unfortuuante purchase. The
Defendants objected to the introduction in evidence of the trustee’s deed to the plaintiff, on the ground that it was incompetent, and passed no title. The objection was overruled^ and the defendants excepted. The only provision in the original deed of trust concerning the effect of recitals to be contained in the trustee’s deed to the prospective purchaser, was in these words: “A recital wherein of the request of the holder of said notes that they should proceed to sell, of the publication of said notice, and, in case of
For this error, the judgment must be reversed and the cause remanded.