107 F. 545 | 8th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
The charge which is contained in the amended bill of complant, to the effect that the complainant below was the actual owner of the land in controversy at and prior to the conveyance of the same to her by Hamilton De Graw, and that the latter deed conveyed no title, and that the notes and deed of trust which were executed by the complainant on October 23, 1872, were for that reason without consideration, is not supported by the evidence, and such claim on the part of the complainant must be disregarded. Notwithstanding the alleged tax title to the land in controversy, which, as the complainant claims, formed a part of the assets of her deceased husband’s estate, and was subsequently acquired by her, it appears that she was dissatisfied therewith, and that before acquiring such tax title she entered
In the amended bill a further ground of relief was alleged, such additional allegation being that there was a premature foreclosure of the deed of trust that was held by De draw, by reason of which fact the complainant’s equity of redemption was not barred. The proof to sustain this averment showed that the deed of trust was given to secure five notes for the sum of §360 each, due, respectively, on April 1, 1873, April 1, 1874, April 1, 1875, April 1, 1876, and April 1, 1877.
“Now, if tlie said. Alice H. Rigney, her executors or administrators, shall pay the sum of money specified in said note, with all the interest that may he due thereon, when said note shall become due and payable, according to the tenor and effect thereof, then this deed shall be void, and the property hereinbefore conveyed shall be released at the expense of said Alice H. Rigney; otherwise, the same shall remain in full force. And the said T. D. Price * * * may proceed to sell the property hereinbefore described, or so much thereof as may be necessary to pay the amount specified in said notes, with interest, and the costs of this’ trust, at public vendue,' for cash, at Carrollton, in the county of Carroll, first giving thirty days’ notice of the time, terms, and place of sale and of the property to be sold, by advertisement,” etc.
The sale under the deed of trust took place after proper advertisement on December 7, 1875, when only three of the aforesaid notes were overdue and unpaid; but the deed which was executed by the trustee in pursuance of the power of sale contained a recital that “default was made in the payment of the principal and interest of said notes secured by said deed,” by reason whereof the trustee had proceeded to execute the powers to him given by virtue of the deed of trust. In view of these facts the trial court held that such foreclosure sale was premature and void, for the reason that all the notes secured by the trust deed were not due when the sale was made. It further held, in substance, that, as the trustee’s sale was void, the purchaser of the property at said sale entered into possession of the property 'as a mortgagee; that those who subsequently held under him by mesne conveyances, including the defendant Stout, entered upon and held the property in the same capacity; and that such continuous holdings for a period of more than 20 years did not operate as a bar to the complainant’s right to redeem, because notice was not brought home to the complainant that they were holding the property adversely, and in denial of her right to redeem.
The principal question presented by the appeal is whether this latter view is tenable. In the state of Missouri, where the land in controversy is situated, it is well settled by repeated decisions that the statute of that state (Rev. St. Mo. 1899, § 4262), which declares, in substance, that no action for the recovery of lands or tenements shall be commenced by any person unless it appears that the plaintiff or other person under whom he claims were seised or possessed of the premises in question within 10 years before the commencement of such action, applies to all civil actions for the recovery of real property, whether they are such as were denominated legal or equitable prior to the Code. According to the decisions in that state, which are binding upon this court in. suits affecting the title to land there located, the statute in question is applicable to suits to enforce trusts in real property, and to actions brought to set aside deeds made in fraud of creditors. It may also be invoked by a mortgagor to bar the foreclosure of a mortgage when the mortgagor asserts that he has held possession for more than 10 years without recognizing the mortgage, and in open denial of the same and the mortgagee’s alleged right to foreclose. Rogers v. Brown, 61 Mo. 187, 195; Kelly v. Hurt, 61 Mo. 463, 466; Lewis v. Schwenn, 93 Mo. 26, 31; Bush v. White, 85
The conclusion last announced will necessitate a dismissal of the bill of complaint; and such action is also rendered necessary by the fact that the complainant appears to have conveyed away all of her interest in the property in controversy by a deed made to William EL Stevenson on August 26, 1875, which deed was acknowledged in accordance with the laws of the state, and duly recorded in Carroll county, Mo., on November 26, 1875. A certified copy of the record of that conveyance was admitted in evidence by the master to show that the complainant had parted with her interest in the property, but the trial court held, on exceptions to the master’s report, that it was erroneously admitted, and refused to recognize it. The reason assigned by the trial court for the rejection of this conveyance was, in substance, that the statute of the state (Rev. St. Mo. 1899, § 941) only allows copies of deeds affecting military bounty lands to be read in evidence “upon proof of the loss or destruction of the original instrument.” The lands in question in this case are what are known as “military bounty lands,” and no proof was adduced at the trial to establish the loss or destruction of the original deed. It should be observed, however, that no such objection to the deed was made before the master when the same was offered and received in evidence, the objection at that time being, in substance, that it was incompetent, irrelevant, and immaterial. In the case of Tully v. Canfield, 60 Mo. 99, it was- expressly decided that, when a deed conveying military bounty lands is acknowl
In conclusion it should be observed that the defendants below, who are the appellants here, insisted in the lower court that it had no jurisdiction, and the same contention is renewed here. This contention is founded upon the fact that Charles Lyon, the curator, is a citizen of the state of Missouri, of which state the defendants below are also citizens, and that the requisite diversity of citizenship, for that reason, is not shown. This contention was overruled by the trial court, and its action in that regard meets with our approval. In the state of Missouri, from which Lyon derived his appointment as curator, the curator of an insane person is not vested with the title to his ward's real property, and actions of ejectment in that state and other actions of a like nature to recover the possession of real property must be brought in the name of the insane person, or in the name of the insane person acting by and through his curator. Reed v. Wilson, 13 Mo. 29; Allen v. Ranson, 44 Mo. 263. As the curator of an insane person is not, by virtue of his appointment, vested with the title to his ward’s realty, but is merely a custodian or bailiff of the ward’s personal property, an action like the one at bar must, of necessity, -be brought in the name of the insane person, or in the name of the insane person by his curator, and the jurisdiction of the federal courts
It results from the foregoing that the decree of the lower court must be reversed. It is so ordered, and that the case be remanded to the circuit court, with directions to dismiss the bill of complaint.