238 Mo. 65 | Mo. | 1911
-Ejectment by West for twenty-five acres of land in the southwest corner of the southwest quarter of the northwest quarter of section 21, township 29, range 25, Lawrence county, describes by metes
As presently appearing, there is but a single question in tbe case, and that apart, from tbe pleadings. Hence, they may be put to one side.
Plaintiff is tbe common source of title. On May 2, 1896, be and bis wife conveyed tbe land to a Doctor Paris as trustee to secure a note for $97.40, due Spaulding and Miles, or order, maturing on December 1, 1898, with interest at eight per cent from mar turity. This deed of trust was subject to a prior one in favor of tbe Central Life Insurance Company, both duly spread of record. Doctor Paris was then a resident of Lawrence county and continued to be such resident until tbe note came due, and for some time thereafter, when be removedlo Polk and took up bis residence in tbe latter county. At tbe time of such removal and change of residence, John Manlove was sheriff of Lawrence and continued to bold that office for some time. At tbe expiration of bis term as sheriff be remained a resident of Lawrence county and lived there at tbe time said junior deed of trust was foreclosed. Sometime before tbe foreclosure, Jobn A. Con-nor became sheriff of Lawrence county and was acting as such at tbe time of such foreclosure. At a certain time after bis removal Doctor Paris refused in writing to- act in tbe capacity of trustee and execute tbe powers donated by tbe deed. Thereupon Connor, at tbe request of tbe legal owner of tbe secured note, made due advertisement and sale. At that sale in 1904 one Murray was tbe best and last bidder and tbe land was knocked down to him under tbe hammer and the deed of trust was thereby satisfied. Thereat Connor executed a trustee’s deed to Murray with apt narrations and in due form. This deed was spread of record in Lawrence county. Thereupon Murray conveyed by
Besides relying on a legal title, there are equities pleaded by Spencer arising from his payment of the first mortgage, taxes, etc., but these equities need no attention unless West is entitled to recover. He is not entitled to recover if Connor, as acting sheriff at the time of foreclosure, was authorized by the terms of the deed of trust to stand in the shoes of Paris as trustee and execute the power of sale therein created and donated. Whether he as “then acting sheriff,” or Manlove, sheriff at the time the note became due and Paris changed his residence, had power to foreclose and convey is the determinative question in the case.
The foreclosed deed of trust had the following provisions, inter alia-.
“. . . and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of Lawrence county, Missouri, at the request of the legal holder of said note, may proceed to sell the property,” etc.
There are other narrations in the deed of trust but they are conventional and have no bearing on the case.
Plaintiff assigns error as follows:
First. That the power of sale in the trust deed must be strictly followed.
Second. That the title to the land became vested In John Manlove, sheriff.
Third. That the foreclosure sale by Connor, sheriff, is void.
For the purposes of the instant case the first proposition may be allowed to plaintiff without dis
Plaintiff leans on McNutt v. Insurance Co., 181 Mo. 94. But he leans on a broken staff. The phraseology of the McNutt deed of trust held in judgment in that case is not the same as the quoted provision from the deed in this case. There is general language in the McNutt case lending countenance to plaintiff’s view, but that general language must no longer be taken as announcing good doctrine. In Feller v. Lee, 225 Mo. 319, the authority of the McNutt case was much shaken, and the holding in the Feller case had the effect (if it did not 'overturn the case) to restrict the McNutt case as authority strictly to the case decided on the very deed there in question. In the McNutt case the language used in creating the trust and donating power was so peculiar, so restrictive and technical that it entangled the owner of the secured notes in-a net he may have woven for the other party. This language (with equities there present) led the court to the conclusion it announced in dealing out justice to those litigants. In Betzler and Clark v. James, 227 Mo. 375, the Feller case was followed. So, in a very late case, Miller v. New Madrid Bank, 236 Mo. 522, the Feller case was followed. The conclusions reached
We shall not reopen the controversy set at rest by these decisions. They stand on their own reasoning and the up to date student in jurisprudence, prodded thereto by a prying mind, may consult those down to date cases for the philosophy of the now accepted doctrine, viz.: In deeds of trust in the usual form (like the one in hand) the legal title is not so vested in the sheriff in office at the time of default, or at the time the original trustee dies, removes, is disabled or refuses to serve, that he has call to execute the powers of sale in foreclosure at the request of the legal holder of the secured note. E converso, the sheriff in office at the time of the foreclosure is the donee of the powers of sale and conveyance in such case. He is the “then acting sheriff” within the purview of the contracting parties.
Accordingly we rule the second and third assignments of error against plaintiff. From that ruling it follows the judgment should be affirmed.
After disposing of the case as above, we find in the files a motion by defendant to dismiss the appeal on grounds striking at the sufficiency of the abstract. Even if that motion were found well taken we cannot very well both dismiss and affirm. That course would be a novel and wild exuberance of judicial power. As defendant asks two favors, the one reaching the same ultimate goal as the other (viz., leaving the judgment below stand) he must rest content with one. Affirmance is enough. The motion is functus officio and is overruled.
The judgment is affirmed.