Miles v. Davis

19 Mo. 408 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

The instrument executed by Ely, in January, 1838, conveyed the property to Carswell & McClellan, in trust to secure the payment of debts admitted to be due to his wards, Mary Ann Carswell and the children of Brady. No power or direction is given in the deed to the trustees, in the event of the failure of Ely to pay the debts at the time specified in the deed. A condition is annexed to the conveyance that, if the money is paid to the wards within five years from its date, the conveyance shall be void. This instrument was treated by the parties and proceeded upon as a mortgage. A petition was filed by Cars-well & McClellan for its foreclosure, as in the case of an ordinary mortgage, and to this petition Ely appeared and filed a cognovit. Judgment was entered and a special fieri facias was issued, upon which the property in question was sold to Glover & Wells, under whom defendants claim. At the same sale, Carswell & McClellan purchased most of the property which was sold. '

The present plaintiff claims by a subsequent conveyance made by Carswell & McClellan, under a decree of the Court of Common Pleas of Philadelphia, by which they convey to the plaintiff all their right and title under the deed from Ely to them, styling it a mortgage deed, and also all their right acquired by the deed of the sheriff to the property which they purchased under the judgment and special fieri facias before mentioned.

After the purchase at the sheriff’s sale, under which the defendant claims the property in question in this suit, it not appearing by the sheriff’s return on the execution that he had sold the property at the sale, he was permitted to amend the return so as to state that he had sold it to Glover & Wells, and the price for which it was sold. This was done upon a motion to the court and an order made thereon. A deed was made by the sheriff to Glover & Wells for the property in question, after the expiration of his term of office. He was not in office at the time he was allowed by the court to amend his return.

1. The law reaching the merits of the controversy between these parties has not been declared by the Circuit Court, as the record shows that the plaintiff having asked for certain instructions to the jury, the court refused some four of those asked, and he immediately took a nonsuit, without any instructions being given to the jury expressing the views of .the .court upon the law of the case. We have not before us the views of that court applying the law to the facts, and we cannot suppose that this has arisen from any unwillingness to declare such views, but infer that it resulted from the haste of the party in taking a nonsuit, because he could not have the 1-aw declared in his own words. We have not heretofore held that the refusal of an instruction was equivalent to the assertion of the converse of the proposition contained in it, and we have seen very many cases, in which such an interpretation of instructions refused would involve the circuit courts in the greatest absurdities. A court may well refuse to give an instruction which contains a correct proposition of law, because either there is no evidence to warrant its- being given, or it has already been given in other instructions, or, because the proposition is too abstract to be useful to the jury.

2. Without any analysis of the instructions given and refused, as moved by the plaintiff, we proceed to give our views upon one branch of the title set up by the defendants. They claim under a sale made by the sheriff under the judgment in favor of Carswell & McClellan against Ely, upon the foreclosure of the mortgage. It has been objected to the proceeding which resulted in this .sale, that the court has'no jurisdiction to give a judgment of foreclosure of an instrument such as that executed by Ely to Carswell & McClellan. It may be admitted that the instrument conveying the property to Carswell & McClellan, in trust to secure an indebtedness to other persons, is not in form an ordinary mortgage, and it may be admitted that, if Ely had resisted the action of the plaintiffs in seeking .a foreclosure by the statutory proceeding, it would have been erroneous in the Circuit Court to have given to the plaintiffs in that suit the judgment that was given. But the Circuit Court had jurisdiction of the. case, and, however erroneous its judgment, a title acquired under it will not be affected by the error.

3. If it be objected that the wards, for whose benefit the conveyance was made, were not parties to the suit, it may be replied, in the language of Judge Story, in his treatise on equity pleading, section 150 : “It maybe laid down as a general rule that, when any persons are made trustees for the payment of debts and legacies, they may sustain a suit, either as plaintiffs or defendants, without bringing before the court the crecUitors or legatees for whom they are trustees, which, in many cases, would be impossible ; and the rights of the creditors and legatees will be bound by the decision of the court, when fairly obtained, against the trustees. In such cases, the trustees, like executors, are supposed to represent the interests of all persons, creditors or legatees.” Kennerly v. Shepley, 15 Mo. 648. In the instrument upon which the proceeding was had, there is no covenant to pay the wards of Ely, and they are no otherwise parties to the instrument than as it was made for their security. The instrument itself and the proceeding upon it are very loose, but there is no ground upon ■which the judgment rendered by the court can be treated in this collateral action as a nullity, either as to the parties to the proceeding or as to the wards of Ely.

4. In like manner, the amendment of the return upon the execution, made by the sheriff who executed the process, upon leave for that purpose granted by the court, although made after his term of office expired, is to be treated in this action as valid. In Blaisdell v. Steamboat Wm. Pope, ante, 157, this court held, that an officer executing process might amend his return by leave of the court, after the expiration of his official term.

The only instruction asked by the plaintiff, in relation to this branch of the defendants’ title, was the sixth, which required the court to say that no title passed by the proceedings in the suit of Carswell & McClellan against Ely and the deed of the sheriff. So far as any objections have been urged, either to the jurisdiction of the court or the right to make the amendment as affecting the defendants’ title, there is nothing which, in the view of the court, can render it invalid, and as, in all probability, this will be sufficient to end the litigation between the parties, we will not spend further time upon the questions of fraud raised in the other instructions of the plaintiff. The judgment is, with the concurrence of the other judges, affirmed.