McDonald v. Frost

99 Mo. 44 | Mo. | 1889

Barclay, J.

The decisive question here is as to the legal effect of the judgment in the prior suit of Ullman et al. v. Davis et al., and of the sale predicated thereon.

The proceedings in that cause were offered in evidence. They disclosed a petition to reform certain deeds in the particulars indicated in the decree, and to foreclose the mortgage mentioned therein.

■ All the defendants had answered, admitting the facts stated in the petition. Thereupon the decree was entered.

As that action was collateral to the present one, any mere error or irregularity in the former would not affect its validity. The defendants therein confessed the allegations of the petition. The decree recites that; and finds the facts necessarily establishing the mortgage as a charge on the .land in question. It then adjudges the correction of - the mistakes of description in the various conveyances, “ enters judgment ” against the mortgagor’s administrator for the debt and damages and directs “ that the equity of redemption in said real estate first aforesaid be sold, and that this judgment bear interest at ten per cent., and that special execution issue.”

In evént of doubt regarding the exact meaning of: a judgment or decree, it is permissible to consider the antecedent record in determining its effect. The petition in the foreclosure suit states good causes of action ; first, for the correction of descriptions in the prior deeds and in the mortgage in question; and, secondly, for 'the foreclosure of the equity of redemption, and for the sale of the land to discharge the mortgage debt and interest.

Upon the personal appearance of defendants and their admission of the facts, the circuit court had undoubted jurisdiction to enter the decree prayed in the petition. Looking at the record in its entirety there is little doubt that the court intended to do so. The formal entry, however, omits certain language usually adopted to express such a purpose. The words wanting we will indicate by italics : “And that the equity of redemption in said real estate first aforesaid be foreclosed and the said real estate sold,” etc.

Defendants claim that this omission gives the decree the effect only of a general judgment for the amount of the mortgage debt and deprives it of any force as a special judgment for the sale of the realty.

But in construing the action of courts, as of other officials, it is well to bear in mind the presumption that they have rightly acted, in the absence of any showing to the contrary. Here the order for special execution is correct if the decree be viewed as one of foreclosure and sale of the realty, while, on the other hand, it is entirely erroneous if the court intended its conclusion to be regarded as a mere general judgment for the mortgage debt and interest. The mortgagor being dead, his administrator was properly a defendant in either aspect of the case, but special execution for the “sale of the equity of redemption ” might rightly issue against the latter to enforce a foreclosure decree, but not to enforce a general judgment (R. S. 1879, secs. 3301, 3307). Had the latter been intended by the court, no order for execution would have been entered, but only an order certifying the judgment to the proper probate court for classification as a demand against the estate (R. S. 1879, sec. 2360).

The informality here exhibited in the entry is of a kind that does not obscure the obvious effect and intent of the decree. Enough is expressed to disclose its purpose clearly.

Under our code of practice, we should always distinguish between mere form and substance (R. S. 1879, sec. 3586). We consider that we do so in the present case by declaring this decree sufficient to support the sale upon the special execution issued under it.

The trial court ruled to the contrary. Its judgment is reversed, and the cause remanded for further proceedings in conformity to this opinion;

all the judges concurring, except Ray, C. J., absent.