89 Mo. 553 | Mo. | 1886
This is an action to foreclose a deed of trust, plaintiff claiming as assignee of the note secured by the deed of trust, and defendants claiming the title to the premises under deeds from the grantor1 in the deed of trust. It was admitted that Wm. M. Clark was the owner of the premises when he executed the deed of trust. The case was submitted upon the following agreed statement of facts: William M. Clark, on September 19, 1872, was the owner of the real estate on which he then made deed of trust to William . E. Lee to .secure to Samuel Archer the payment of the three notes mentioned in the petition and set out in the deed of trust, which matured respectively on April 1, 1874, April 1, 1875, and April 1, 1876. This deed of trust was duly recorded. Each of the notes was, before its maturity, endorsed and delivered by Archer to the plaintiff for value, she having paid for all the notes an
Upon the hearing the court rendered judgment for the defendants, from which plaintiff .has appealed to this court. The simple question for determination is, can the payee of a note secured by a deed of trust after he has assigned the note discharge the property of the lien as between a bona fide purchaser of the property and the assignee of the note by entering satisfaction of the debt on the margin of the record or otherwise ? It has been repeatedly and uniformly held in this state that the assignment of a note before maturity secured by a deed of trust carries the trust deed as an incident. Logan v. Smith, 62 Mo. 459; Goodfellow v. Stillwell, 73 Mo. 19; Joerdens v. Schrimpf, 77 Mo. 383. In the latter case, which is analogous to this, the court said: “Hence, if-the plaintiff purchased the note for value, before maturity, and before the entry of satisfaction, the payment to Ohlendorf and his entry of satisfaction on the record could not affect the security afforded by the deed of trust.” There Ohlendorf was the payee of the note secured by the deed of trust. Again, said the court: “Ohlendorf was not the cestui que trust when the entry was made, he was not the person authorized by statute to make it, and it stands on the record a mere nullity.”
In the case of the Boatmen’s Savings Bank v. Grewe, 84 Mo. 478, this court said: “It is well settled law, that the assignment of the note carries the security. The assignee stands in the place of the payee. Neither the trustee nor the assignor can alone enter satisfaction of the mortgage debt. Generally the assignee is a necessary party to all proceedings affecting his security, in order to be bound thereby.” These recent decisions
The judgment is reversed and the cause remanded.