17 Mo. App. 684 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This is an appeal from an order removing a trustee. The respondent has filed no brief, but the case is not for this reason to be decided in favor of the appellants, unless, in view of the arguments submitted by them, and the facts disclosed by the record, the circuit court is put in the wrong.
It appears that, in 1876, Mayfield and wife made a certain deed of trust of land to Foley, trustee, to secure a a certain indebtedness of Mayfield, evidenced by certain negotiable promissory notes; that Foley subsequently died and the indebtedness maturing, the holder of the notes, Joseph T. Donovan, applied to the circuit court, under the statute, for the appointment of a trustee to execute the trust, and that Charles E. Giraldin was thereupon appointed. This was in 1879. Giraldin
Mr. Laughlin submitted his own affidavit, showing, among other things, that he had acquired an interest in the property from one Flint, to whom Mayfield had conveyed his interest in 1878 ; that Griraldin was proceeding to advertise the property for sale;"that Griraldin was, and had been for some years, a book-keeper and clerk for Donovan; that, in a suit pending in another room of
Donovan, in his counter affidavit, exhibited the notes secured by the deed of trust with the name of the maker erased, and with the following endorsement on their face: “Sold under deed of trust June 23, 1879. C. E. Giraldin, Tr.” He claims that the notes remain due according to their tenor, principal and interest, the
The court having read and considered these affidavits, declined to hear argument on the question, but this declination need not be considered, because it could not be made the subject of exception. The court thereupon made an order sustaining the motion of Mr. Laughlin, and dismissing Mr. Griraldin from his trusteeship. To this order Griraldin and Donovan excepted, and from it they have prosecuted this appeal. The ground of objection urged to this order is that the court had no power cr jurisdiction by motion to remove Griraldin from the' trusteeship. This argument proceeds upon the view that the legal effect of the order appointing Griraldin trustee was to vest in him the legal title to the property, and that this title could not be divested out of him in a summary proceeding by motion, or in any other proceeding than a suit in equity. In support of this proposition we are cited to the case of Bowditch v. Banuelos, 1 Gray 228. We do not understand that such is the effect of our law in the sense here contended for. Under our law, the legal title to mortgaged land remains in the mortgageor until after condition broken. Woods v. Hilderband, 46 Mo. 284; Masterson v. West End,