Lee v. Clark
89 Mo. 553
Mo.
1886
Check Treatment
Henry, C. J.

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 *557aggregate sum of two thousand two hundred and fifty-four dollars and eighty cents, in cash. At the time of her purchase of the first note in October, 1872, the deed of trust was delivered to her by Archer, together with the-note, and the notes and deed of trust have been in her-■possession ever since their delivery to her. No payment on account of the principal of any of the notes has been made; the interest on them to October 1, 1875, has been paid. On September 2, 1.876, long after the plaintiff' had purchased ■ the notes and while they were in her possession, and after their maturity, Samuel Archer, the payee, made the following entry upon the margin of the record of the deed of trust: “This deed of trust is satisfied in full, both principal and-interest. Given under my -hand and seal, this second day of September, 1876. Samuel Archer [seal].” After this entry was; made Archer informed William M. Clark that the- notes--had been fully paid and the real estate released from the-lien of the deed of trust. On January 13,1879, William' M. Clark, in satisfaction of a debt which he -owed John ■R. Clarke, conveyed the land to the latter ; on July 21,. 1879, John R. Clarke conveyed to Robert L. Baker; on September 25, 1879, Robert L. Baker conveyed the east half of the property to James B. Baker, who, on October-18, 1880, conveyed the same to defendant, Mary A. Baker. On October 21, 1881, Robert L. Baker conveyed the west half to defendant Hammerslough. John .R, CJarke, Robert L. Baker, James B. Baker, Mary A. Baker and Louis Hammerslough purchased relying upon-Archer’s record entry of satisfaction of the deed of trust and believing the land was free from the lien of the deed of trust. None of them knew that the notes had been transferred to the plaintiff. The plaintiff has always resided in the state of Pennsylvania, and has never been in the state of Missouri. She never had any knowledge, information or intimation whatever that Samuel Archer, or any other person, had attempted to release the deed *558■of trust until in the month of June, 1882, when she sent an agent to Kansas City for the purpose of taking steps to foreclose or sell under the deed of trust, when an examination of the records by said agent disclosed the existence of the marginal entry of release.

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 *559:are in harmony with those which held that the security passed as an incident, with the assignment of the note, and are decisive of the question involved in this case ; and to the question, what shall one desiring to purchase •do, under such circumstances as are disclosed by this record, the answer is, let it alone until he can ascertain who holds the note. He is under no obligation to buy, .and prudence would dictate that he should not buy until satisfied that the owner of the note had entered satisfaction of the debt. It may embarrass persons desiring to purchase, and it might be well for the legislature to'require a memorandum of the assignment of the note to be entered upon the margin of the deed of trust •or mortgage.

The judgment is reversed and the cause remanded.

All concur, except Norton, .T