212 Mo. 611 | Mo. | 1908
— This case was certified here hy the St. Louis Court of Appeals, after opinion written and handed down (Stockton v. Teasdale, 115 Mo. App. 245), on the theory it was in conflict with a decision of the Kansas City Court of Appeals (Stanton v. Gibbins, 103 Mo. App. 264). Afterwards, in another case, this court determined the proposition involved (Bumgardner v. Wealand, 197 Mo. 433), holding with Stockton v. Teasdale, supra. Thereafter, the Kansas City Court of Appeals placed itself in line with the Bumgardner case (McCauley v. Brady, 123 Mo. App. 558), and with its prior decision in Little v. Reid, 75 Mo. App. l. c. 270, et seq.
The law of the case being settled, we have no call beyond making this opinion self-explanatory by squeezing into a nutshell the facts and the proposition of law in judgment, viz.:
Respondent, Hattie C. Teasdale, was born Martin —the only daughter and heir of John G-. Martin. John Gr. and other Martins and one Stockton were tenants in common in a parcel of real estate. John Cr. mortgaged his undivided interest and died. The mortgage was executed on October 19, 1887, to secure a note due in one year for $2,000, payable to one Thorpe. Thorpe sold the note to one of the Martins. Payment in whole or part was never made and the purchasing Martin died testate, nominating appellant Stockton as executor of her will. In 1903 partition was brought among the tenants in common of said parcel (said executor being a party) — only one feature of which concerns us, viz.: The petition charged that the undivided interest of defendant Hattie C. devised to her by the will of her said father, was subject to said mortgage, and asked to sequestrate enough of the proceeds to
The contention of learned counsel for Mrs. Teasdale involves the gloss of an act of the G-eneral Assembly passed in 1891, now sections 4276 and 4277, Revised Statutes 1899. Section 4276 reads: “No action to foreclose mortgage after note tarred. No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the Statute of Limitations of this State.” Section 4277 reads: “Mortgage notes executed prior to 1891 tarred, when.— Nor shall any suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act.”
Recurring to section 4276, supra, it in terms refers to mortgages “executed hereafter.” The mortgage in question was not “executed hereafter,” hence is not within that section. Recurring to section 4277, supra, it has been held that mortgages securing notes not
The premises considered, the judgment of the circuit court, entered on the order of distribution is reversed and the cause is remanded to that court with directions to.enter a new order and judgment of distribution, turning over to Stockton, executor, the amount found due on the mortgage in accordance with the first order of distribution.