243 Mo. 81 | Mo. | 1912
Equity. Plaintiffs’ ancestor, Amanda T. Hughes, sued in the Clark Circuit Court to set aside a judicial sale following the foreclosure of a mortgage on, say, 1300 acres of land in Clark county, Missouri, and to redeem. Cast below, she appealed. Pending appeal she dies, leaving plaintiffs as her only heirs. On suggestion of her death here the cause is-revived in their names. They enter their appearance and prosecute this appeal.
In November, 1904, Amanda T. Hughes (with two of the present plaintiffs) executed a note to defendant bank in the rise of $8500, due in a year and drawing seven per cent interest, securing it by a mortgage in common form on the land in question (then subject to
The bill narrates the foregoing facts and then alleges that defendant bank and the plaintiff, Amanda T. Hughes, were at all times citizens and residents of Iowa; that the note and mortgage were Iowa contracts and are to be construed under its laws; that under those laws Amanda T. Hughes was entitled to redeem from a sale under a decree foreclosing a mortgage at any time within one year. Predicating a right of redemption on that state of facts, the bill next goes on to complain of irregularities in the sheriff’s sale. One is said to be that the land was offered in the lump and knocked down on a lump bid for an inadequate consideration of one-half its real worth. Another is said to be that Winkleman combined with other bidders to chill and depress the bidding, whereby the price was beaten down to the injury of the mortgagor. Another is said to be that the sale was void because advertised at the “courthouse door” in Kahoka and no particular door was noticed, although there were four outside doors to the courthouse, one on each side. It was next alleged that Winkleman knew and had notice (by the
Defendant bank answered by general denial. It seems to have no interest in the subject-matter and why it was made a party is dark.
Winkleman answered admitting the execution of the note and mortgage, the judgment of foreclosure, the sheriff’s sale thereunder on execution, and that he bought thereat, paid his bid and got a sheriff’s deed under which he claims an absolute title. He specifically denies averments charging that the mortgage was governed by Iowa law,' or that he knew it was an Iowa contract, or that the right of redemption provided by that law governed the sale of Missouri land under a Missouri judgment of foreclosure and judicial- sale, or that the price was inadequate, or that there was any agreement among bidders to chill the bidding, or that the sheriff’s notice of sale was irregular and void in particulars alleged. He admits the sale was a lump sale on a lump bid, but avers (and proves) it was made in that way at the request of the mortgagor and of those representing her at the sale. There is next a plea of estoppel in that there was a surplus at the sale which Mrs. Hughes took down and receipted for to the sheriff.
At the trial a faint attempt was made to show grounds of equitable relief because of inadequacy of consideration coupled with irregularities in the sheriff’s sale of the sort alleged in the bill. But there was no proof of substance on any such score.
Mrs. Hughes was a citizen of Iowa, but at the time she executed the note, and mortgage she was visiting in Minnesota and the mortgage shows it was executed in that State. There is nothing to show that Winldeman (we infer from the record, a citizen of Missouri).
Iowa statutes were introduced, reading:
“Sec. 4045. The debtor may redeem real property at any time within one year from the day of sale and will, in the meantime, he entitled to the possession thereof; and for the first six months thereafter such right of redemption is exclusive; but no party who has taken an appeal from the superior or district court, or stayed execution on the judgment, shall be entitled to redeem.
“Sec. 4289. When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution.”
The allegation in Winkleman’s answer that the sale created a surplus and that Mrs. Hughes took down that surplus was sustained by the proof.
I. The issues on appeal. We may with profit fetch a small compass on the issues. It will be observed that the hill is framed on two theories — one a redemption as of course under the statutes of Iowa; the other, such irregularities in the sale as made it voidable and invoked relief on general equitable principles. Attending to the latter theory, it is passed sub silentio and is not pressed in the brief of plaintiffs’ counsel. That silence when brought to hook is tantamount in a forum of reason to an admission of a failure of proof (which was so); and to an invitation to
Plaintiffs stand or fall here on these propositions: (1) The mortgage was an Iowa contract. (2) Under Iowa law the right to redeem from a foreclosure sale was open for one year as of course. (3) Under the doctrine of comity that law and right must be read into the mortgage, the judgment of foreclosure, the sale and sheriff’s deed; and, so reading it into and saddling it on the transaction, it must be enforced in this State. We shall say what we have to say in considering those related propositions under an omnibus head, viz.:
II. Should the decree be disturbed? My brethren. are of one mind with me in answering that question, no. This, because:
Counsel on neither side have been able to find a case deciding the precise point presented here. Neither have we. The question being apparently new, in such fix we proceed, absent controlling authority, guided by general legal principles, the analogies of the law, parity of reasoning, and in line with public policy and common sense.
The following propositions may he accepted as announcing sound and pertinent doctrine.
(a) At common law, whatever right to redemption existed prior to foreclosure, after decree of fore
At very root, comity is courtesy. In jurisprudence, however, comity is a kind of courtesy which, subject to exceptions, is administered by fixed rules of law and rises to the dignity of a legal right, as over against mere politeness in social intercourse. Courtesy must give way to the law of the forum, where the latter-on a rule of property in the State of the forum clashes with a rule of property in some other State, when the property is real property — immovables, as in the case at bar. Speaking to the question, Story [Conf. of Laws (8 Ed.), sec. 424] says: “And here the general principle of the common law is, that the laws of the place where such property is situate,- exclusively govern in respect to the rights of the parties, the modes of transfer, .and the solemnities which should accompany them. The title therefore to real property can be acquired, passed, and lost [the italics are ours] only according to the lex rei sitae. . . . Sec. 428: ‘ ‘ The consent of the tribunals, acting- under the common law, both in England and America, is in a practical sense absolutely uniform on the same subject. All the authorities in both countries, so far as they go, recognize the principle in its fullest import, that real estate, or immovable property, is exclusively subject to the laws of the government within whose territory it is situate. . . . Sec. 448: It may be affirmed without hestitation that, independent of any contract express on-implied, no estate can be acquired by operation of law in any other manner, or to any other extent, or by any other means, than those prescribed by the lex rei sitae.”
The general doctrine thus announced by Judge Story is unqualifiedly subscribed to in this jurisdiction. [State v. Clark, 178 Mo. 20; Richardson v. DeGiverville, 107 Mo. l. c. 433; Keith v. Keith, 97 Mo. l. c. 228.] And, on reason, applies to the facts in judgment.
Assuming it a rule of real property in Missouri that there is no right of redemption as of course from a foreclosure on a decree, as held in paragraph “a,” then, under the general principles formulated in this paragraph, how could we consistently hold that a Missouri rule of property, whereby title is lost or acquired, should give way to a contrary Iowa rule of property, when, as here, the real estate, the foreclosure, the execution, the sale, one and all are in Missouri and the sheriff’s deed came into being and passed title by virtue of Missouri law? Shall we rule that an owner of land in this State acquires it under a Missouri rule of property and loses it under an Iowa rule of property? If so, wherefore? Must we look to our own laws in settling our own titles .and also to the laws of forty-eight other States ? That would be a hard saying, much murmured against. To so rule would be to say that a citizen of Iowa has a right of redemption under our law denied to a citizen of Missouri, merely because of the accidental factor that the mortgage in one instance
Again, we will not so write the law as to discriminate against our own citizens, “Justice must not be sacrificed to courtesy.” [Bryan v. Brisbin, 26 Mo. l. c. 425; Thurston v. Rosenfield, 42 Mo. 474.] In dealing with non-residents, they must be content with the constitutional safeguards of equality before our law — a benign and venerable doctrine, well vouched for: “Ye shall have one manner of law, as well for the stranger, as for one of your own country.” [Lev. xxiv:22.]
(c) We are cited to many cases relating to transitory as distinguished from local actions, to the law of the place of the contract as distinguished from the law of the place of performance, to cases relating to movables, usury, limitations and to still others on covenants that are personal as distinguished from those that run with the land, to the right of priorities between foreign creditors on assignments, to cases dealing with the mere verbal interpretation of deeds made in one State and relating to real estate in another, in which courts have made, and properly made, nice distinctions in upholding the law of the place of the contract as between their own'citizens, or as to one who seeks their courts for relief. It is not deemed necessary to discuss those cases, or to point out, a,s might be done, wherein they may be differentiated on principle from the case at bar. None of them, when well looked to, are in point. Moreover, in one view of it, the right
The case breaks before reaching (hence without following out) all the ramifications in arguments and briefs. There are questions not vital that we reserve; for instance, estoppel, whether notice to Winkleman of the laws of Iowa and of the fact that the mortgage was an Iowa contract was essential to plaintiffs’ right of action.
Let the decree he affirmed. It is so ordered.