Mason v. Barnard

36 Mo. 384 | Mo. | 1865

Wagner, Judge,

delivered the opinion of the court.

Several questions have been elaborately discussed in the argument of this cause, which we have found it unneces-. sary to consider, as the record discloses two points which must control and decide it.

No exceptions being saved in the court below, we can notice nothing except error apparent on the face of the record. The equitable doctrine of subrogation, insisted on by the counsel for the defendant in error, can have no application for the reason that the petition is not in the nature of a bill in equity, but a proceeding strictly in accordance with the statute regulating foreclosures. A bill in equity could not ask such relief as the plaintiff demanded in his petition, and no chancellor exercising exclusively equitable powers would have been justified giving such a decree or judgment as the court rendered in this cause. By a bill in equity the property might be subjected to the payment of the trust debt, but there the proceedings must cease ; and if a general judgment is desired for the residue of the debt, where the property proves insufficient, it can only be obtained by invoking the aid of the statute. And it is now well settled that a proceeding to foreclose the equity of redemption of a mortgage or deed of trust,.under our statute, is a proceeding at law, and not governed by the rules of proceedings in equity; and this, it seems, is not altered by the code allowing legal and equitable remedies to be joined. (Thayer v. Campbell et al., 9 Mo. 277; Riley v. McCord, 24 Mo. 265.)

The prayer of the petition is for judgment that the defendants and each of them, and all persons claiming under them, may be foreclosed of all interest, lien and equity of redemption in the premises, and that the same be sold, and that the proceeds thereof be applied to the payment of the costs and expenses of the action, and to the payment of the amounts due on the said notes; and that should the proceeds arising out of the sale of the premises be insufficient to satisfy the debt, then upon the ascertainment of the deficiency for a general judgment over personally against the defendants for the residue.

Upon this prayer the court gave judgment foreclosing the equity of redemption in and to the premises described in the deed of trust; and also further ordered, adjudged and decreed, that if the said real estate and premises were not sufficient to satisfy the debt, interest and costs, then the residue should be levied of the other goods, chattels, lands and tenements of the defendants. By the terms of the deed of trust, the trustee was empowered to sell all the property when the first note fell due; and they were all to be considered, at the option of the person holding the same, to be matured upon the first default, for the purpose of the application of the trust fund.

But the reason for such a provision is obvious. Upon a sale of the whole property, if the purchase money exceeds the amount due on the first note, it would have to lie in the hands of the trustee without interest till the succeeding note matured, if no condition was made to the contrary; and the condition inserted to elect to consider them all due, was for the purpose of distributing the trust fund to all when the property was sold, but for that purpose only. It was never intended that they should become due for the purpose of obtaining a judgment at law.

It has been often held that where suit is brought on a cause of action before the same is past due, the proceeding is not only wrong, but the defendant aggrieved thereby may avail himself of the objection by prosecuting his writ of error even after judgment by default. (Randolph v. Cook, 2 Port. Ala. 286 ; Lowry v. Lawrence, 1 Caines, 69 ; Cheatham v. Lewis, 3 Johns. 42; Ward v. Honeywood, Doug. 61.) But in Blount v. McNeil (29 Ala. 473), a distinction is taken where the entire cause of action is immature at the commencement of the suit, and where a part only is not due when the suit is instituted. And it is decided that, in the latter case, the defence could only be partial, going simply to the notes not due, and that it would not be available when no objection was in any way made in the court below. But the determination was made upon the provisions of the code in that State. But what must be considered as decisive in the ease at bar, is the judgment against Mrs. Fithian. Barnard executed to her a deed for two pieces of property, one of them being the same which was bound by the deed of trust. It is recited in the said deed, that, as a part of the consideration, she is to pay off the notes embodied in the said deed of trust; but this was a deed-poll, not a deed inter partes; it was executed by Barnard alone, and never executed or acknowledged by Mrs. Fithian.

As has been heretofore observed, this proceeding was wholly statutory; and the statute declares that when the mortgagor has been duly summoned, the judgment, if for the plaintiff, shall be that he recover the debt, damages and costs, to be levied of the mortgaged premises; and that if the mortgaged property be not sufficient to satisfy the same, then the residue to be levied of other goods, chattels, lands and tenements of the mortgagor. (2 R. C. 1855, p. 1089, §§10,14.)

Mrs. Fithian never executed the instrument — could in no sense be said to be a mortgagor; and the judgment over against her, personally, was erroneous and irregular. .'

Judgment reversed and cause remanded.

Judge Holmes concurs ;

Judge Lovelace absent.