| Mo. | Oct 15, 1871
delivered the opinion of the court.
The plaintiff brings ejectment and claims title through a mortgage executed in 1835 by James C. Johnson to James H. Rolfe and Andrew Jamieson, and a subsequent conveyance by the mortgagees. The defenses are, first, that Rolfe and Jamieson’s deed conveyed no title; and second, the statute of limitation.
Johnson was the tax collector for Washington county, and Rolfe and Jamieson were sureties upon his official bond. The mortgage was given to indemnify them as such sureties, and it gave the mortgagees power to sell upon default, either at auction or private sale.
In 1836 Rolfe and Jamieson executed to J. L. Yan Doren a warranty deed of the forty acres in dispute, together with an adjoining forty acres belonging to Jamieson; but no allusion was made to the power, and there was nothing to indicate the nature of the interest they had in the premises. This and the subsequent conveyances constitute the same chain of title given in Pease v. Lawson, 33 Mo. 35" court="Mo." date_filed="1862-10-15" href="https://app.midpage.ai/document/pease-v-lawson-8001223?utm_source=webapp" opinion_id="8001223">33 Mo. 35, although the land there in controversy was the adjoining forty acres belonging to Jamieson, whose right to sell was undisputed.
If becomes necessary to consider first whether the conveyance by Rolfe and Jamieson was an execution of the power, and, if not, what was the legal effect.
In executing a power of sale, the conveyance, to be regular, should recite or refer to the power. This is the rule, and conveyancers should not disregard it. Still the omission of such recital or reference will not vitiate an attempted execution, provided it be plain that it was the intention of the party to execute the power. It is a question of intention as shown by the instrument. It is presumed that one who executes a conveyance designs to
Rolfe and Jamieson had an estate as mortgagees, coupled with a power, and the effect of their deed was to convey the estate and power to Van Doren, subject to Johnson’s equity of redemption ; for a mortgage with power of sale grants the estate, subject to extinguishment by performance of conditions, and the power, coupled with an interest and irrevocable, is ingrafted on the estate.and with the estate vests in the assignee of the mortgagor. (4 Kent, 147; 2 Washb. 324.) Having, then, an estate — a substantial interest which could pas3 — the conveyance furnishes no evidence of any intention to execute the power and thus extinguish the equity of redemption.
The court, however, to which the cause was submitted, in its declaration, No. 5, held that “the deed executed by Rolfe and Jamieson to J. L. Van Doren, dated August 13, 1836, conveyed to said Van Doren no title to the land in controversy.” This was error, for though the deed cannot be deemed an execution of the power so as to cut off redemption, it was, as we have seen, a conveyance of the legal title vested in the grantors by the mortgage and by conditions broken, if it were in fact broken, and was sufficient to enable the plaintiff to bring this action.
The defendant offered evidence to show that the mortgage had been satisfied, and in reference to such evidence the court made the following declaration, to which the plaintiff objected: “ If the court found from the evidence that the amount of money secured by the deed of trust (mortgage) executed by Johnson to Rolfe and Jamieson, was paid off by the assets of said Johnson, before the sale to Van Doren, then Rolfe and Jamieson had no
In some of the States the mortgage with condition broken is held to so pass the title that it cannot revert at law without a deed (2 Day, 151" court="Conn." date_filed="1805-07-01" href="https://app.midpage.ai/document/phelps-v-sage-7866201?utm_source=webapp" opinion_id="7866201">2 Day, 151; 15 Conn. 13), and so in some of the other States. The old doctrine was that the title passed upon the delivery of the mortgage, and after default that the estate became absolute at law, and a reconveyance became necessary. But the great preponderance of modern authority establishes the rule that a mortgage, though a conveyance in fee upon condition, is, even after condition broken and the legal title passes, merely a security for the debt, which security is extinguished and the title reinvests' whenever the debt is paid. Chancellor Kent, speaking of payment after default, and in commenting upon the old doctrine, says : “I am persuaded that most of the courts of law in this country would not now tolerate a claim of title under a mortgage admitted or shown to have been fully and fairly satisfied by payment of the debt.” (4 Kent, 194, notes b and p.)
This point may not have been directly made in this court, but in all the cases bearing upon the title of mortgagees, the modern doctrine, which would involve the same view, has been distinctly held. (Kennett v. Plummer, 28 Mo. 145; McNair v. Picotte, 33 Mo. 57" court="Mo." date_filed="1862-10-15" href="https://app.midpage.ai/document/mcnair-v-picotte-8001228?utm_source=webapp" opinion_id="8001228">33 Mo. 57; Ward v. Hildebrand, 46 Mo. 284" court="Mo." date_filed="1870-07-15" href="https://app.midpage.ai/document/woods-v-hilderbrand-8002933?utm_source=webapp" opinion_id="8002933">46 Mo. 284.) In either view of the conveyance by Rolfe and Jamieson, whether it be considered as an execution of the power or as an assignment of the mortgage, this declaration of law was correct; for the condition controlled the grant, and the appointment being fulfilled, both the estate and power created by the instrument were extinguished.
For the error in instruction No. 5, the judgment must be reversed; for we are unadvised whether the finding of the court was based upon the idea that no title or interest could pass by the deed of Rolfe and Jamieson whether the mortgage was satisfied or not, or whether it was found that the mortgage had been in fact satisfied.
Other declarations bearing upon the effect of Johnson’s deed are defective, and there are defects in some which apply the
The other judges concurring, the judgment will be reversed and the cause remanded.