Lewis v. Schwenn, 93 Mo. 26

Lewis v. Schwenn

93 Mo. 26 | Mo. | 1887

Lead Opinion

Black, J.

The plaintiff:, as public administrator, having in charge the estate of August Engler, brought this suit of ejectmént to recover a small parcel of land in St. Louis county. The cause was tried before the court, without a jury, and resulted in a judgment for defendants, which was affirmed in, the court of appeals.

It is agreed that J. Richard Barrett had a good title to the premises on the twenty-fifth of February, 1862. The plaintiff put in evidence a sheriff5 s deed, dated March 21, 1867, and recorded in the following June, conveying to said Engler all the right and title of Barrett in and to the premises in dispute. The defendants read in evidence a deed of trust made by Barrett to Kalb as trustee, dated February 25, 1862, and recorded the next day, to secure a note of one thousand dollars, signed by Barrett and payable to Sutton. The deed recites that the note was past due, and states that Sutton had extended the time of payment to January 1, 1863. The deed of trust contains the usual power of sale; also a deed by the trustee to B. N. Steinberger, dated August 7, 1878, and recorded in December, 1878. This deed was accompanied by proof that the property had been advertised for sale for the length of time and at the place specified in the deed of trust; also a deed from Steinberger to defendant, dated July 6, 1879.

The other evidence is not preserved, but the bill of exceptions states that plaintiff gave evidence tending to prove that, in the spring or early summer. of 1867, August Engler took possession of the premises, claiming to own the same, and retained possession of them under such claim of title until the year 1875, or 1876, and then leased the same to Jacob Schwenn, father of the defendants; that Jacob Schwenn remained in the possession, as tenant of Engler, until July, 1879, when he gave up possession to defendants. The bill of exceptions also states that defendants offered evidence *30tending to prove that, in 1875, or 1876, Jacob Schwenn purchased the property from Engler by a verbal contract, and took possession under the contract, but never paid the purchase money, and finally gave up possession to the defendants.

1. Plaintiff objected to the deed of trust and trustee’s deed, when offered in evidence, on the ground that the debt had been paid, and on the ground that the deed of trust showed that the debt was more than ten years past due at the date of the trustee’s sale, from which fact the law presumes the debt had been paid, and hence the sale was void, and passed no title. There is no evidence that the debt, in point of fact, had been paid, and we only have to deal with the alleged presumption. This objection to the deeds as evidence was also renewed by way of an instruction. If the presumption of payment from lapse of time has any application to this case, still the objection.to the deeds as evidence was properly overruled, for such a presumption is rebuttable. It may be overcome by other facts and •circumstances. Jackson v. Slater, 5 Wend. 296. The •court could not dictate the order in which defendants .should put in their evidence as to this question of fact. Again, the question was one of fact and law, and could not be determined until the defendants’ evidence was all before the court. The instruction is based upon the .admission of a common source of title in Barrett, and the facts disclosed on the face of the deeds put in evidence. It does not state, hypothetically, that Engler was ever, at any time, by himself, or tenant, in the possession of the premises. In Jackson v. Pierce, 10 Johns. 413, the fact that the mortgaged premises were uncultivated for a part of the time, was considered a circumstance to rebut the presumption of payment. In Chouteau v. Burlando, 20 Mo. 483, the court said: “There was no possession by the mortgageor, in the sense that is required in order to raise the presumption *31of satisfaction of the debts.” That case, the case of Cape Girardeau v. Harbison, 58 Mo. 90, and McNair v. Lot, 34 Mo. 300, where the doctrine of presumption of satisfaction of a mortgage is discussed, all go upon the theory that the mortgageor, or those claiming under him, and claiming the benefit of the presumption, have had possession for the requisite period of time. The instruction did not state sufficient facts to raise the presumption, and was properly refused.

2. But if our statute of limitations applies to mortgages so as to bar a foreclosure, then there is no reason for resorting to presumptions at all. This question may be considered in connection with the second and third instructions asked by the plaintiff and refused by the court. The presumption of payment arising from possession and lapse of time, was formerly resorted to for want of such a statute. Recent adjudications of this court hold that the statute applies to all civil actions, whether they be such as were formerly denominated legal or equitable. Hunter v. Hunter, 50 Mo. 445; Rogers v. Brown, 61 Mo. 187; Buren v. Buren, 79 Mo. 538. The ten-year statute with respect to real actions, has been applied, as will be seen from the cases last cited, in suits to enforce trusts in real estate, and to set aside deeds because made in fraud of creditors. In the recent case of Bush v. White, 85 Mo. 339, the statute was applied in favor of a purchaser at a sheriff’s sale, who had been in adverse possession of the premises for more than ten years, as against a prior mortgagee from the judgment debtor.

From these decisions, there can be no doubt but the statute does apply to mortgages. The question then is, which statute applies — that in relation to personal actions, or that in relation to real actions. Both operate as a bar in ten years. The suit to foreclose a mortgage is based upon a deed with a defeasance. The suit concerns land. Its object is to foreclose the equity of *32redemption. The fact that it is done now by decree and sale, and not by a strict foreclosure, does not change the nature of the suit. The ten-years statute with respect to personal actions, may apply to the note so as to prevent any judgment over, but as to the mortgage itself, and relief thereon, the ten-years statute with respect to real actions must be resorted to. The mortgagee, after forfeiture, may recover the possession by ejectment without foreclosure, according to a number of decisions of this court. In such cases it cannot be maintained that he would be barred short of ten years’ adverse possession, and there is as much reason for applying that statute, in case the mortgage is sought to be foreclosed, as when the mortgagee seeks to get possession by ejectment. This result is consistent with the former adjudications of the court, in so far as they hold that, though the note or bond secured may be barred so that no action can be maintained thereon, yet the mortgage may be enforced against the land by trustee’s sale or foreclosure. Chouteau v. Burlando, supra; Cape Girardeau Co. v. Harbison, supra; Wood v. Augustine, 61 Mo. 46.

The mortgage will be available until there is ten years’ adverse possession, for the limitation affecting the recovery of real estate or the recovery of the possession thereof requires adverse possession to support it. Possession by the mortgageor or his grantees will not be adverse so long as payments of principal or interest are made, or the relation of mortgageor and mortgagee is recognized by both parties. Nowin this case there was evidence tending to show that Engler took possession in the summer or spring of 1867, and had such possession to 1875 or 1876, and that Jacob Schwenn then took possession and held the same, either as tenant or vendee of Engler, to the date of sale in 1878, and thereafter to 1879. One difficulty with the second'and third refused instructions is, that they do not submit the question whether *33the possession was adverse to the mortgagee. Indeed the bill of exceptions does not show that there was any such evidence ; and, as we have seen, it does not follow that possession under claim of title is necessarily adverse to the mortgagee. There was no error in refusing these instructions.

in them, of which we are not advised.

No question is made here of the right of the administrator to prosecute this suit of ejectment, and his. right to do so is assumed, not passed upon.

The judgment is affirmed.

All concur.

Rehearing

On rehearing.

Ray, J.

Upon the motion for rehearing, filed in this cause, I have reconsidered my concurrence, in the foregoing opinion, and now dissent from the same.