Phelps v. Relfe, 20 Mo. 479

Ryland, Judge,

delivered the opinion of the court.

Sоme time in February, in the year eighteen hundred and. thirty-four, the plaintiff, Timothy Phelps, borrowed of Washington county the sum of fоur hundred dollars, for'the payment of which he executed his note, with James H. Relfe and James C. Johnson his sureties. At the sаme time, the plaintiff, in order to secure his said sureties, executed to them a mortgage on a certain trаct of land situated in the county of Perry, containing two hundred and thirty-eight acres and nineteen hundredths, originally confirméd to Noel Hornback, and numbered on the official plat 377. This mortgage was shortly after its date duly recorded in said сounty of Perry. James S. Evans was subsequently substituted for said James 0. Johnson. In November, 1839, an execution was issued in favor of Austin H. Hawkins against the plaintiff, Phelps, and was by the sheriff of Perry county levied upon the land above described ; and on thе 23d of March, 1840, the said sheriff sold all the right, title and interest of the plaintiff in and to said land, and said James S. Evans, who had beеn substituted in place of the surety, Johnson, became the purchaser thereof. This purchase by Evans was with an understanding on the part of Relfe to be on their joint account. The deed was made to Evans alone. Relfе and Evans afterwards ‍‌‌‌‌​‌​‌‌​‌‌‌​‌‌​​​‌‌​​​‌​‌‌‌‌​‌​​​​​​​‌‌​​‌‌‌‌‌‍disagreeing in regard to the manner and terms of the purchase, Evans has never made Relfе any title to any part of the land, but retains the whole himself. The defendant, Relfe, and the said Evans have eaсh paid one half of the amount due on the said note to the county of Washington. The defendant, Relfe, has never received any thing for the money which he paid to Washington county as surety for Phelps, unless the above рurchase of Phelps’ land by Evans is held to be such. The land, at the time of the purchase thereof by Evans, was supрosed to be worth from eight to ten dollars per acre ; but after the flood in the year eighteen hundred and forty-four, and down to the trial of this ■suit, was worth not more than two dollars and fifty cents per ¡•acre. On or about the 30th day of December, 1851, the plaintiff requested the defendant to enter satisfaction on the margin • of the record of said mortgage, which the defendant has hitherto failed to do.

This suit is for the penalty prescribed by the statute for failing tо enter satisfaction on the margin of the record of a mortgage, when it has been paid ; also to cоmpel defendant ‍‌‌‌‌​‌​‌‌​‌‌‌​‌‌​​​‌‌​​​‌​‌‌‌‌​‌​​​​​​​‌‌​​‌‌‌‌‌‍to bring in the note to Washington county before the court to be can-celled, so far as regards the rights of the defendant, Relfe, ¡and for other and general relief.

These are the facts substantially as found by the court, and upon these facts, the Circuit Court refused to give the plaintiff any relief, and entered a decree for the defendant. The plaintiff thereupon prayed for an appeal, and brings the casе here for further adjudication.

1. The statute concerning mortgages, (R. C. 1845,) which was the law in force at the time the request ‍‌‌‌‌​‌​‌‌​‌‌‌​‌‌​​​‌‌​​​‌​‌‌‌‌​‌​​​​​​​‌‌​​‌‌‌‌‌‍in this case was made to have satisfaction entered on the margin of the record, declares, in sеction 22 : “If any mortgagee, his executor or administrator or assignee receive full satisfaction of any mоrtgage, he shall, at the request of the person making the same, acknowledge satisfaction of the mortgаge on the margin of the record thereof, or deliver to such person a sufficient deed of releasе of the mortgage.” See. 23. “ If any such person thus receiving satisfaction do not, within thirty days after request, acknowledge satisfaction on the margin of the record, or deliver to the person making satisfaction a sufficient dеed of release, he shall forfeit to the party aggrieved ten per cent, upon the amount of the mortgage money absolutely, and any other damages he may be able to prove he has sustained, 'to be recovered in any court of competent jurisdiction.”

Sec. 24 declares the effect of such acknowledgment of satisfaction thus made, and of such deed of release acknowledged and recorded, to be, “ to release ‍‌‌‌‌​‌​‌‌​‌‌‌​‌‌​​​‌‌​​​‌​‌‌‌‌​‌​​​​​​​‌‌​​‌‌‌‌‌‍the mortgage and bar all actions brought thereon, and reinvest in the mortgagor or his legal representatives all title to the mortgaged property.”

How can the mortgage in this case be considered satisfied? Only by reason of the purchase by the mortgagee of the mortgaged premises, and this purchase can be considered a satisfaction of the mortgage, alone because it vests in the mortgagеe the mortgaged property. Would it not be a strange proceeding to require a mortgagee, who is рaid in this manner, to acknowledge satisfaction on the record and thereby restore the property received to the mortgagor ? Such is the glaring absurdity of the case upon which this plaintiff seeks not only relief, but insists upon the imposition ‍‌‌‌‌​‌​‌‌​‌‌‌​‌‌​​​‌‌​​​‌​‌‌‌‌​‌​​​​​​​‌‌​​‌‌‌‌‌‍of a penalty upon another.

The principle is well established that the purchase by thе mortgagee of the equity of redemption in the mortgaged premises extinguishes the mortgage debt, and the effеct is the same, whether the purchase is by a direct contract with the mortgagor or at a sale of the lаnd by execution under a junior judgment. (1 Bailey’s Eq. Rep. 338. 2 Cow. Rep. 300.) In this case, however, the court is not to be understood as exрressing the opinion that the matters set up and found as above, constitute any payment of the mortgage, аs against Relfe. It is enough to say, if they did, that would be the very reason why the plaintiff should not have the relief he seeks.

The judgment is affirmed; the other judges concurring.

Case Details

Case Name: Phelps v. Relfe

Court Name: Supreme Court of Missouri

Date Published: Mar 15, 1855

Citation: 20 Mo. 479

Court Abbreviation: Mo.