131 Mo. 568 | Mo. | 1895
This is an action in' ejectment to recover possession of a strip of land in the southwest quarter of section ll, township 56, range 19, in Chariton county, inclosed and occupied by defendant as a right of way, running diagonally through said quarter section and containing about fourteen acres. The case was tried before the court without a jury; the plaintiff had judgment and the defendant appeals.
The facts, so far as necessary to be stated for the
In February, 1887, the defendant went into possession of the strip of land in said quarter section in controversy, and on the seventh of March thereafter the said Woods and wife executed and delivered a warranty deed therefor, to the defendant. On the fifth of February, 1889, the quarter section was sold under the deed of trust of the ninth of February, 1882; was purchased for the plaintiff by his attorney, who received the trustee’s deed theiefor, and transferred the title thus acquired to plaintiff.
On the twelfth of July, 1889, the quarter section was again sold, under an order of the county court foreclosing said mortgage to the county of the twenty-eighth of May, 1867, and the plaintiff became the purchaser thereof, and received a deed therefor, in pursuance of such sale, and, on the twenty-fifth of September, 1889, instituted this suit.
The cause was afterwards tried in the circuit court upon the issues then made, and judgment rendered for the defendant, from which the plaintiff appealed to this court, where the judgment was reversed and the cause remanded for new trial. Upon that appeal it was decided that thé plaintiff was not estopped from asserting his right to the possession of the land in controversy
After the cause was remanded the defendant filed an amended answer, tendering new issues, upon which the case was tried the second time, and from the judgment in this second trial the present appeal is prosecuted.
The main issue tendered by the amended answer is that Holloway’s equity of’ redemption acquired by Woods was not foreclosed by the sale made by order of the county court on the twelfth of July, 1889, for the following reasons:
“First. Because said pretended sale was not made at the courthouse in Keytesville, in which the circuit and other courts were held at the time of the execution of said mortgage deed, which was the courthouse designated and intended by the parties to said mortgage deed.
“Second. Because said sale was not made by the person who was sheriff of Chariton county at the time of the execution of said mortgage deed, as contemplated by said deed, and there was no provision in said instrument conferring such power of sale upon his successor in office.
“Third,. Because said property was not sold for cash in hand as required by law, and by the terms of said mortgage deed, and by the terms of the advertisement giving notice of the sale, but was unlawfully attempted to be sold to plaintiff upon time payments and without the payment of cash, and thus a secret and unlawful preference was given plaintiff, which was a fraud upon this defendant, and others who might desire to bid upon said property.
*574 “Fourth. Because said mortgage deed is so vague, indefinite, and uncertain that a resort to foreclosure in court should have been resorted to.
“Fifth. ' Because no proper, sufficient legal notice by publication of such sale was given in any newspaper printed and published in 'Chariton county, and because said attempted publication was not for the length of time required by law, and did not correctly give the time, terms of sale, place, and a description of' the property to be sold.
“Sixth. Because there is no provision in said mortgage deed permitting a sale ‘without suit on the mortgage,’ as required by law, and a sale without suit on the mortgage is void.
“Seventh. Because the order of the county court, dated May 8, 1889, conferred no authority upon said O. B. Anderson; the power of said county court to order such sale, if any existed, being contained in, and confined to, an order of sale made of record by said county court in 1888, which said order of sale of 1888 was delivered to said O. B. Anderson, but was never executed by him.”
The answer also alleges that the trustee’s deed, made in pursuance of the sale of the fifth of February, 1889, is void for the following reasons:
“First. Because although it was provided in said deed of trust and in the advertisement of sale, that said sale would be for cash, yet the sale was not in fact made for cash, but by a secret arrangement upon credit, which was a fraud upon this defendant and upon others desiring to bid upon said property.
“Second. Because said trustee’s deed does not state that thirty days’ public notice of the time, terms, and place of sale, and of the property to be sold, had been given.
*575 11 Third. Because the Chariton Courier, in which the notice is said to have been given, is not, and was not at the time, a newspaper printed and published in Chariton county.
“Fourth. Because said trustee’s deed does not purport to have been made according to the terms of the deed of trust, in that it does not state that the sale to J. C. Crawley was for cash.”
And concludes with the following prayer:
“Wherefore, defendant prays that the said trustee’s deeds may be set aside and for naught held, and that plaintiff being subrogated to the rights of the county, under the county mortgage, may be remitted to his remedy by foreclosure in court, to the end that the real estate covered by said deeds of trust may be sold in the inverse order of alienation to protect the defendant’s rights, and for such other relief as may be equitable and just, and defendant herewith offers to pay such portion of the debt secured by such deeds of trusts as it ought in equity to pay, and to do and perform the orders and decrees of the court in the premises.”
The school fund mortgage in question after reciting the bonds secured and conveying the said quarter section to the county in fee simple, with the usual clause of defeasance, contained the following provision in case of default: “But if default be made in the payment-of the aforesaid bonds, or either of them, or any part of either of them, at the times when they shall severally become due and payáble according to the tenor and effect thereof, then the sheriff of Chariton county may proceed to sell the said real estate or any part thereof at public outcry to the highest and best bidder for cash in hand, before the east door of the courthouse in Keytesville, ■ first ‘ giving twenty days’ notice of the time, terms of sale, place, and a description of the property to be sold, by advertisement in
The statute governing in such cases provided that, “every mortgage taken under the provisions of this chapter shall be in the ordinary form of a conveyance in fee, shall recite the bond, and shall contain a condition that if default shall be made in payment of the principal or interest, or any part thereof, at the time when they shall severally become due and payable, according to the tenor and effect of the bond recited, the sheriff of the county may, without suit on the mortgage, proceed and sell the mortgaged premises, or any part thereof, to satisfy the principal and interest, and make an absolute conveyance thereof in fee to the purchaser, which shall be as effectual to all intents and purposes as if such sale and conveyance were made by virtue of a judgment of a court of competent jurisdiction, foreclosing the mortgage.” G. S. 1865, p. 270, sec. 69.
It was under this section of the statute that the mortgage was taken. The statute further provided that, “whenever the principal and interest, or any part thereof, secured by mortgage containing a power to sell, shall become due and payable, the county court may make an order to the sheriff, reciting the debt and interest to be received, and commanding him to levy the same, with costs, upon the property conveyed by said mortgage, which shall be described as in the mortgage; and a copy of such order, duly certified, being delivered to the sheriff, shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly.” 2 R. S. 1879, sec. 7113.
It was under this section of the statute that the
The statute under consideration does not prescribe a form for the mortgage to be taken under its provisions. And while the condition of the mortgage in question is not in the exact words of the section prescribing what that condition shall be, it does contain all the essential requirements of the statute and gives to the sheriff express and direct power, in case of
This was all done fairly and openly in the usual
It appears from the statement in that case that the order misdescribed the land given to secure the debt, and, hence, was held to be insufficient to identify the mortgage. But in the order under consideration the land is correctly described, and there is no difficulty in identifying the mortgage under which the sheriff was directed to make the sale, as well as the debt it was given to secure, and as the power of the sheriff to sell proceeded directly from the mortgage, and not from the order of the county court, which has been held to be “no more than a demand upon the sheriff that he proceed to execute the powers specified in the mortgage” (Grant v. Huston, 105 Mo. 97) this mistake in the order could not affect the validity of the sale made in pursuance of such power.
That the legal title to the real estate passed by the mortgage and the sheriff’s deed made in pursuance thereof is beyond question. Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemens, 120 Mo. 73; Springfield, etc., Co. v. Donovan, 120 Mo. 423; Biffle v. Pullam, 125 Mm 108. The only interest in the land that Holloway parted with by his deed to Woods was his equity of redemption; the only interest the defendant acquired by his deed from Woods was Holloway’s right to redeem. The. only standing the defendant claims in this action is the right to redeem by reason of having acquired Holloway’s equity of redemption and to be standing in his shoes. This right was subject to foreclosure by a sale and conveyance in pursuance thereof by the sheriff made as provided in the mortgage, the effect of which was to wipe out Holloway’s equity of redemption to whomsoever it may have been by him transferred. Defendant’s right, being only Holloway’s right taken subject to the mortgage, was necessarily taken subject to the foreclosure of that right, and was lost by such foreclosure.