Sappington v. Oeschli, 49 Mo. 244

49 Mo. 244 | Mo. | 1872

Adams, Judge,

delivered the opinion o£ tbe court.

This was an action of ejectment, originally brought by plaintiff against the defendants in the Pettis Common Pleas Court, and transferred from that court to the Circuit Court of Pettis county, by consent of parties.

The petition was in the usual form for the possession of the east half of the southwest quarter of section 8, township 43 of range 23, situated in Pettis county. The answer was a general denial. The cáse was tried before the court sitting as a jury, and judgment was given in favor of the plaintiff for possession, etc. Both parties claimed title under one Thomas N. Christian, who held the land by patent from the United States.

The plaintiff, to maintain the issues on her part, relied upon a mortgage executed to her by Christian, in 1858, to secure a debt evidenced by a note for some $800. This mortgage was duly executed and acknowledged, but was not recorded until the 6th of January, 1866. The plaintiff brought suit for foreclosure and sale of the mortgaged premises, and obtained judgment in the Pettis Circuit Court on the 3d of September, 1866, and a special execution was issued on this judgment in June, 1868, and a sale was made thereon on the 29th day of July, 1868, during the session of the Pettis Circuit Court, and the plaintiff at this sale became the purchaser of the mortgaged land. The sheriff made her a deed on the 4th day of August, 1869, which recites the foregoing facts. This deed was acknowledged in open court on the 4th of August, 1869, and an entry to that effect made of record; but the clerk omitted to state in the acknowledgment written on the deed that it was taken in open court, and also stated that it was made the 2d of August instead of the 4th of August, 1869. And the defendants objected to the reading of this deed on that ground, and also on the ground that it did not relate back, as to them, to the time of the sale. But the court overruled these objections, and the defendants excepted. The plaintiff then proved possession by defendants at the commencement of the suit, and rents and profits, and rested.

The defendants then, to maintain the issues on their part, offered as evidence a sheriff’s deed, made in 1864, to Logan Clark, on attachment judgment in favor of Logan Clark against said Christian. But this deed was rejected, and properly so, as it did not contain the land in dispute. The defendants then introduced another sheriff’s deed, reciting an execution of date January 6, 1866, on the same judgment in attachment, in favor of Logan Clark against said Christian, and a sale under this execution on the 2d day of May, 1866, at which the defendants became the purchasers of the land in dispute. The defendants then introduced Logan Clark as a witness, who testified that he gave credit to Christian on the faith that he was the owner of the land, and that it was unencumbered, and evidence that the plaintiff was residing with Christian when Clark’s debt was created, and other evidence tending to show that other persons had credited Christian on the faith that this land was unencumbered.

The plaintiff then asked several declarations of law, which it is unnecessary to recite, and the defendants also asked two declarations, which were refused, to the effect that the plaintiff was estopped by the facts of this case from setting up her title under the mortgage and the foreclosure sale, and to the effect that as the defendants were strangers, the sheriff’s deed to plaintiff did not relate back to the time of the sale under the foreclosure, so as to vest in the-plaintiff a title before the ouster laid in the petition.

The main question in this case is as to the proper construction to be given to our registry acts. Ever since the decision in the case of Davis v. Ownsby, 14 Mo. 170, it has been the settled law of this State that the title of a bona fide purchaser or mortgagee, under a deed or mortgage not recorded, is good against creditors at large, and is also good against sales under judgments and executions, if the deed or mortgage is duly recorded before such sales. This has been the uniform ruling of this court since the decision referred to. (See Valentine v. Havener, 20 Mo. 133; Stilwell v. McDonald, 39 Mo. 282; Porter v. McDowell, 43 Mo. 93; Reed v. Ownby, 44 Mo. 204.) There is no pretense that there was any fraud in the debt or mortgage held by the plaintiff against Christian. So far as this record shows, she was a bona fide creditor, and the mortgage was executed in good faith to secure an honest debt. Her mortgage, therefore, must prevail over the execution sale under the judgment in attachment. To hold otherwise' would be to overrule the decision in the case of Davis v. Ownsby, and all the other cases in this State since that time, and such a ruling would shake the titles to an immense amount of real property.

Where a course of decisions so long acquiesced in has become a rale of property, it would be exceedingly unwise and injudicious to attempt to change it. Being the settled law of the land, it must remain such till the Legislature sees fit to alter it. An act of the Legislature must be prospective, and could not affect vested rights, whilst a decision of this court changing this rule would necessarily ¡retroact and unsettle titles.

There is nothing in the question of estoppel raised and discussed here. The facts detailed in evidence create no estoppel ¿gainst the plaintiff asserting her title under the mortgage and foreclosure sale.

The mortgage-itself in this case was a sufficient title to maintain this action of ejectment. But the sheriff’s deed under the foreclosure sale related back to the time of the sale, so as to vest the unconditional title to this land in the plaintiff from that time.

There were no intervening rights to prevent the sheriff’s deed from relating to the sale. The defendants were strangers, it is tzme, but the sheziff’s deed to them ivas behind the mortgage, and did not vest them with any rights intervening between the sale under the judgment of foreclosure and the execution of the sheriff’s deed to the plaintiff. So there was nothing at all in this case to prevent the sheriff’s deed to the plaintiff from relating to the sale.

The technical objection to the date and form of acknowledgment on the sheriff’s deed to plaintiff was superseded by the amendment which was made by the order of the court.

The judgment must be affirmed.

The other judges concur.