« 이전계속 »
therein prescribed, a sale by the sheriff, under , jury. The plaintiff had judgment, and the an order of the county court, under the power defendant appeals. The facts, so far as thus granted, foreclosed the mortgagor's equity of redemption, though the condition in the mort
necessary to be stated for the purpose of this gage did not contain the quoted words in sec- opinion, are that on the 28th of May, 1867, tion 69, and provided for a sale at public out- John B. Holloway, then the owner of said cry for cash in hand at the courthouse door, first giving 20 days' notice in some newspa-- Chariton county, conveying the same to said
quarter section, executed a mortgage to per,--stipulations not required by the statute.
2. In an action attacking a sale under a county, to secure the payment of $1,584.54, school-fund mortgage, it appeared that the mort- borrowed by him of the school funds of said gage provided that the sale should be for "cash in hand"; that the purchaser negotiated a loan
county. In January, 1882, the said Hollofrom the same fund of an amount equal to the way sold and conveyed said quarter section l'rincipal of the mortgage debt; that the securi- to 0. H. Woods and wife, subject to said ties given for such loan, together with a sum
mortgage. On the 9th of February, 1882, equal to the secured interest on the mortgage debt and the expense of the trust, were accept
the said Woods and wife executed a deed of ed in payment of the purchaser's bid, and the trust, with power of sale, conveying said mortgage was satisfied and the deed delivered
land to James Snyder, trustee, to secure the and filed for record two months after the sale; that the payment of the amount bid was de
payment to plaintiff of a note of said Woods layed for the approval of the sale by the coun
for the sum of $1,050. In February, 1887, ty court; and that the sheriff's deed recited that the defendant went into possession of the the land was sold under the power in the mort
strip of land in said quarter section in congage, and in compliance with the order of the county court, for cash, and acknowledged the
troversy, and on the 7th of March thereafter receipt of the money. Held, that the sale was
the said Wood and wife executed and delivnot open to attack on the ground that it was not ered a warranty deed therefor to the demade for cash, as was required by the terms of
fendant. On the 5th of February, 1889, the the mortgage.
3. Where one of several bonds secured by a quarter section was sold under the deed of mortgage was for the sum of $200, a sale, other- trust of the 9th of February, 1882, and was wise regular, under an order of the county
purchased for the plaintiff by his attorney, court, and pursuant to the terms of the mortgage, was not invalid because the order of the
who received the trustee's deed therefor, and county court recited that such bond was for transferred the title thus acquired to plain$100. Honaker v. Shough, 55 Mo. 472, dis- tiff. On the 12th of July, 1889, the quarter tinguished. 4. After a mortgagor had parted with all
section was again sold under an order of his interest in the land, the sheriff, under the the county court foreclosing said mortgage mortgage barring the right of redemption, and to the county of the 28th of May, 1861, and an order of the court, exposed to sale “all the
the plaintiff became the purchaser thereof, right, title, and interest of the said” mortgagor "in and to said tract of land," and, by his deed,
and received a deed therefor, in pursuance conveyed "all the right, title, and interest of of such sale, and on the 25th of September, the said" mortgagor "in and to said real estate"
1889, instituted this suit. The cause was to the purchaser. Held, that the legal title passed by the mortgage and the sheriff's deed
afterwards tried in the circuit upon the isto such purchaser, and the right of redemption sues then made, and judgment rendered for of such mortgagor and those claiming under the defendant, from which the plaintiff aphim was lost by the foreclosure. 5. The mere fact that the property convey
pealed to this court, where the judgment was ed by a deed of trust is sold in gross is not
reversed, and the cause remanded for new sufficient to avoid the sale.
trial. Upon that appeal it was decided that 6. A mortgage provided that the sale under
the plaintiff was not estopped from assertit should be made at "the east door of the courthouse” in K. At the time it was made, the
ing his right to the possession of the land courts were being temporarily held in a school- in controversy under the legal title acquired house in K. Held, that a sale at the east door
by him by his deed made in pursuance of the of the courthouse afterwards constructed in K.
sale made in foreclosure of the county mortwas valid. Stewart v. Brown, 20 S. W. 451, 112 Mo. 171, followed.
gage, and that his right of action was not Appeal from circuit court, Chariton coun
barred by the statute of limitations. 112 ty; W. W. Rucker, Judge.
Mo. 527, 20 S. W. 885. Ejectment by Benjamin F. Snyder against After the cause was remanded, the defendChicago, Santa Fé & California Railway
ant filed an amended answer, tendering new Company. From a judgment for plaintiff,
issues, upon which the case was tried the defendant appeals. Affirmed.
second time, and from the judgment in this For prior report, see 20 S. W. 885.
second trial the present appeal is prosecuted. Gardiner Lathrop, J. C. Wallace, and S.
The main issue tendered by the amended anW. Moore, for appellant. Crawley & Son,
swer is that Holloway's equity of redempfor respondent.
tion acquired by Wood was not foreclosed
by the sale made by order of the county court BRACE, C. J. This is an action in eject- on the 12th of July, 1889, for the following ment to recover possession of a strip of land reasons: "(1) Because said pretended sale in the S. W. 14 of section 11, township 56, was not made at the courthouse in Keytesrange 19, in Chariton county, inclosed and ville, in which the circuit and other courts occupied by defendant as a right of way, were held at the time of the execution of running diagonally through said quarter sec- said mortgage deed, which was the courttion, and containing about 14 acres. The house designated and intended by the parties case was tried before the court without a to said mortgage deed; (2) because said sale was not made by the person who was sheriff ered by said deeds of trust may be sold in of Chariton county at the time of the execu- the inverse order of alienation to protect the tion of said mortgage deed, as contemplated defendant's rights, and for such other reby said deed, and there was no provision in lief as may be equitable and just; and desaid instrument conferring such power of fendant herewith offers to pay such portion sale upon his successor in office; (3) because of the debt secured by such deeds of trusts said property was not sold for cash in hand as it ought in equity to pay, and to do and as required by law, and by the terms of said perform the orders and decrees of the court mortgage deed, and by the terms of the ad- in the premises." vertisement giving notice of the sale, but The school-fund mortgage in question, aftwas unlawfully attempted to be sold to plain- er reciting the bonds secured, and conveying tiff upon time payments, and without the the said quarter section to the county in fee payment of cash, and thus a secret and un- simple, with the usual clause of defeasance, lawful preference was given plaintiff, which contained the following provision in case of was a fraud upon this defendant and others default: "But if default be made in the who might desire to bid upon said property; payment of the aforesaid bonds, or either of (4) because said mortgage deed is so vague, them, or any part of either of them, at the indefinite, and uncertain that a resort to fore- times when they shall severally become closure in court should have been resorted to; due and payable according to the tenor and (5) because no proper, sufficient legal notice effect thereof, then the sheriff of Chariton by publication of such sale was given in any county may proceed to sell the said real esnewspaper printed and published in Chariton tate or any part thereof at public outcry to county, and because said attempted publica- the highest and best bidder, for cash in tion was not for the length of time required | hand, before the east door of the courthouse by law, and did not correctly give the time, in Keytesville, first giving twenty days' noterms of sale, place, and a description of the tice of the time, terms of sale, place, and a property to be sold; (6) because there is no description of the property to be sold, by provision in said mortgage deed permitting advertisement in some newspaper printed a sale 'without suit on the mortgage,' as and published in Chariton county, to pay required by law, and a sale without suit on the aforesaid bonds and interest thereon, the mortgage is void; (7) because the order of and shall make an absolute conveyance to the county court dated May 8, 1889, conferred the purchaser therefor.” The statute goyno authority upon said 0. B. Anderson, the erning in such cases provided that "every power of said county court to order such sale, mortgage taken under the provisions of this if any existed, being contained in and confined chapter shall be in the ordinary form of a to an order of sale made of record by said coun- conveyance in fee, shall recite the bond, and ty court in 1888, which said order of sale of shall contain a condition that if default 1888 was delivered to said O. B. Anderson, but shall be made in payment of the principal or was never executed by him.” The answer interest or any part thereof at the time also alleges that the trustee's deed made in when they shall severally become due and pursuance of the sale of the 5th of February, payable according to the tenor and effect of 1889, is void for the following reasons: "(1) the bond recited, the sheriff of the county Because, although it was provided in said may, without suit on the mortgage, proceed deed of trust and in the advertisement of and sell the mortgaged premises or any part sale that said sale would be for cash, yet thereof to satisfy the principal and interest, the sale was not in fact made for cash, but and make an absolute conveyance thereof in by a secret arrangement upon credit, which fee to the purchaser, which shall be as efwas a fraud upon this defendant and upon fectual to all intents and purposes as if such others desiring to bid upon said property; sale and conveyance were made by virtue of (2) because said trustee's deed does not state a judgment of a court of competent jurisdicthat 30 days' public notice of the time, terms, tion foreclosing the mortgage." Gen. St. and place of sale and of the property to be 1865, p. 270, 8 69. It was under this section sold had been given; (3) because the Chariton of the statute that the mortgage was taken. Courier, in which the notice is said to have The statute further provided that “whenbeen given, is not, and was not at the time, ever the principal and interest or any part a newspaper printed and published in Char- thereof secured by mortgage containing a iton county; (4) because said trustee's deed power of sale shall become due and payable, does not purport to have been made accord- the county court may make an order to the ing to the terms of the deed of trust, in that sheriff, reciting the debt and interest to be it does not state that the sale to J. C. Craw- received, and commanding him to levy the ley was for cash." And concludes with the same with costs upon the property conveyed following prayer: “Wherefore defendant by said mortgage, which shall be described prays that the said trustee's deeds may be as in the mortgage; and a copy of such orset aside and for naught held, and that plain- der duly certified, being delivered to the tiff, being subrogated to the rights of the sheriff, shall have the effect of a fieri facias county, under the county mortgage, may be on a judgment of foreclosure by the circuit remitted to his remedy by foreclosure in court, and shall be proceeded with accordcourt, to the end that the real estate cov- ingly. 2 Rev. St. 1879, $ 7113. It was under
this section of the statute that the sale was made in pursuance of an order of the county court reciting the debt and interest to be received, the default in the payment thereof, and commanding the sheriff of said county to levy upon, advertise, and proceed to sell the real estate described in said mortgage "to the highest bidder, for cash in hand, at the east front door of the courthouse in the town of Keytesville, in said county, during the sitting of the circuit court of said county at the July special term, 1889, thereof, first giving twenty days' notice of the time, terms, and place of sale, and a description of the property to be sold, by advertisement in some newspaper published in said Chariton county."
1. The defendant's first contention is that the mortgage is not a statutory mortgage, and could not be foreclosed by the sale made by the sheriff in pursuance of said order of the county court, for the reason that the word “interest," in the fourth line, and the words "without suit on the mortgage,” in the seventh line, of said section 69, are omitted from the condition of the mortgage, and for the further reason that said condition contains the words "at public outcry to the highest bidder, for cash in hand, before the east door of the courthouse in Keytesville, *
first giving twenty days' notice of the time, terms, and place of sale, and a description of the property to be sold, by advertisement in some newspaper printed and published in Chariton county,”-stipulations not required by the statute. 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 default, to foreclose the mortgage by sale in the manner therein prescribed; and there can be no question, under the repeated rulings of this court, that a sale made by the sheriff of Chariton county, under the order of the county court, in pursuance of the power thus granted, would have the effect of foreclosing the mortgagor's equity of redemption: Mann v. Best, 62 Mo. 491; Grant v. Huston, 105 Mo. 97, 16 S. W. 680; Walters v. Senf, 115 Mo. 524, 22 S. W. 511. Was the sale thus made? is the next question.
2. The appellant contends that it was not, for the reason that the mortgage provided that the sale should be for "cash in hand," and the sale was actually made on credit. It appears from the recitals in the sheriff's deed executed and acknowledged in open court on the 12th day of July, 1889, that the land was sold on that day in pursuance of the power contained in said mortgage, and in compliance with the order of the county court, to the plaintiff, for cash, and the re
ceipt of the purchase money is therein acknowledged. Parol evidence was introduced tending to prove that the money was not immediately paid to the sheriff, but the pay. ment deferred to await the approval of the sale by the county court at its next sitting, on the 5th of August, 1889, at which term the sheriff was required to make report of such sale, pending which the plaintiff negotiated a loan from the county from the same fund of an amount equal to the principal of the debt secured by the mortgage; and the securities given for this loan, together with an amount in cash equal to the accrued interest on the mortgage debt, and the expenses of executing the trust, were accepted in payment of the plaintiff's bid, the mortgage satisfied, the deed delivered, and filed for record, on the 12th day of September, 1889. This was all done fairly and openly, in the usual and ordinary mode of doing this kind of business, in the management of this fund, and in it we perceive no abuse of the authority conferred upon the county officers by the statute, and nothing that gives color to the contention that this was not a cash sale, within the meaning of the power conferred in the mortgage.
3. The mortgage was given to secure the payment of seven bonds, in different amounts, each dated 28th day of May, 1867, and each payable 12 months after date. One of these bonds was for the sum of $200. In the order of sale by the county court, this bond was, by mistake, recited as a bond for $100; and it is urged that this misrecital vitiates the sale, and, in support of this contention, Honaker v. Shough, 55 Mo. 472, it cited.
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, 16 S. W. 680), this mistake in the order could not affect the validity of the sale made in pursuance of such powers.
4. It is next urged that, as the sheriff only exposed to sale "all the right, title, and interest of the said John B. Holloway in and to said tract of land," and by his deed only "assigned, transferred, and conveyed all the right, title, interest, and estate of the said John B. Holloway in and to said real estate" to the plaintiff, and as the said Holloway had parted with all his interest in the land prior to the sale, the sheriff sold and conveyed nothing, and the plaintiff acquired nothing, by his purchase and deed. That
the legal title to the real estate passed by the mortgage and the sheriff deed made in
McCANN et al. v. EDDY et al. pursuance thereof is beyond question. Schan
(Supreme Court of Missouri. Dec. 10, 1895.) ewerk v. Hoberecht, 117 Mo. 22, 22 S. W.
CARRIER-LIABILITY FOR NEGLIGENCE OF CONNECT949; Kennedy v. Siemers, 120 Mo. 73, 25 S. ING CARRIER-REGULATION OF COMMERCE. W. 512; Thresher Co. V. Donovan, 120 Mo. 1. As Rev. St. 1889, $ 944, provides that, 423, 25 S. W. 536; Biffle v. Pullam, 125 Mo. whenever any property is received by a carrier 108, 28 S. W. 323. The only interest in the
for transportation from one place to another,
such carrier shall be liable for the negligence of land that Holloway parted with by his deed
any other carrier to which such property may be to Wood was his equity of redemption. The delivered, a carrier contracting to transport catonly interest the defendant acquired by his
tle to a point beyond the terminus of its line deed from Wood was Holloway's right to
cannot, by contract, exempt itself from liabil
ity for the negligence of the carrier completing redeem. The only standing the defendant the transportation. claims in this action is the right to redeem
2. The construction given to said statute by reason of having acquired Holloway's eq
does not make it repugnant to Const. U. S. art.
1, § 8, giving to congress alone the power to reg. uity of redemption, and to be standing in his
ulate commerce among the states. shoes. This right was subject to foreclosure Sherwood, J., dissenting. by a sale and conveyance in pursuance there
In banc. Appeal from circuit court, Monroe of by the sheriff, made as provided in the
county; Thomas H. Bacon, Judge. mortgage, the effect of which was to wipe
Action by McCann & Smizer against George out Holloway's equity of redemption to
A. Eddy and another, receivers for the Miswhomsoever it may have been by him trans
souri, Kansas & Texas Railway Company, ferred. Defendant's right, being only Hol
for negligence in the transportation of stock. loway's right taken subject to the mortgage,
Plaintiffs had judgment, and defendants apwas necessarily taken subject to the fore
peal. Affirmed. closure of that right, and was lost by such
For former report, see 27 S. W. 541. foreclosure.
5. It is next urged that the sale under the Jackson & Montgomery, for appellants. J. mortgage should be set aside, for the reason
H. Rodes and R. B. Bristow, for respondents. that it was made by the sheriff in mass. There is nothing in the circumstances of the MACFARLANE, J. This action is to resale in question to buttress such a complaint, cover damages against defendants, as reand it is well settled law in this state that ceivers of the Missouri, Kansas & Texas Railthe mere fact that the property conveyed by way Company, for negligence of duty in the a deed of trust is sold in gross is not per se
transportation and delivery of 95 head of catsufficient to avoid the sale. Benkendorf v.
tle from Stoutsville, in Monroe county, in this Vincenz, 52 Mo. 441; Bank v. Stumpf, 73 state, to Chicago, in the state of Illinois. Mo. 311; Chase v. Williams, 74 Mo. 429. Stoutsville is a station on the road operated 6. The sale was made at the "east door by defendants. Hannibal is the eastern ter
From that point the ed in the mortgage. This courthouse was Wabash Railway Company operates a road to not constructed at the time the mortgage was
Chicago. The cattle were delivered by deexecuted, but the courts were then being
fendants to the Wabash Company in a reatemporarily held in the schoolhouse in said sonable time and in good order, by which city. From this, defendant contends that the they were carried to Chicago. The neglisale was not made at the place contemplated gence complained of was committed on the by the parties, and should therefore be avoid- Wabash road, and by its employés. ed. This contention must be ruled against So much of the contract under which the the defendant, on the authority of the re- shipment was made as is necessary to an uncent case of Stewart v. Brown, 112 Mo. 171, derstanding of the questions involved is as 20 S. W. 451, in which the same question follows: was maturely considered in banc, and set- "Rules and regulations: In case the owner tled.
or consignor agrees to hold these receivers 7. We have thus noticed all the objections free from liability from any and all causes urged against the foreclosure proceedings un- enumerated in the following contract, also der the school-fund mortgage, and find none agrees to load, feed, water, and attend to the of them tenable. We have also examined stock himself, etc., as specified therein, the those that have been urged against the pro- rates agreed upon and specified in the conceedings under the deed of trust, and do not tract will be given." think any of them sufficient to impair that "Live-stock contract, executed at Stoutsville sale and the deed executed in pursuance station, Mo., Nov. 12, 1890: This agreement, thereof. These objections, however, need made between George A. Eddy and H. C. not be noticed in detail, as the proper fore- Cross, receivers of the Missouri, Kansas and closure of the school-fund mortgage “swept Texas Railway, parties of the first part, and away the rights defendant had secured by M. B. Smizer, party of the second part, witits deed from Wood” (112 Mo., loc. cit. 540, nesseth that: Whereas, the receivers of the 20 S. W. 885), and its defense in the case. Missouri, Kansas and Texas Railway transThe judgment is affirmed. All concur.
port the live stock as per above rules and
of the courthouse” in Keytesville, as provid- minus of their road.
regulations, and which are hereby made a age to plaintiffs in the disposition of said part of this contract, by mutual agreement cattle, the jury will find for plaintiff, and, in between the parties hereto: Now, therefore, default of such finding, the jury will find for for the consideration and mutual covenants defendant." The evidence tended to prove and conditions herein contained, said party the negligence charged and the resulting damof the first part is to transport for the second ages. The judgment was for plaintiffs, and party the live stock described below, and the defendants appealed. parties in charge thereof as hereinafter pro- 1. This appeal involves the interpretation vided, namely, six cars, said to contain 95 of the contract under which the cattle were head of cattle m. or l. 0. r., from Stoutsville shipped, and a determination of the effect station, Missouri, to Chicago, Illinois, station, that should be given the clause exempting consigned to Brown Bros.
Bros. & Smith, care defendants from "all liability of every kind Union Stock Yards at Chicago, Illinois, at the after the cattle left its road.” As the conthrough rate of 1712C. per hundred pounds,
tract must be construed so as to give proper from Stoutsville, Missouri, to Chicago, Illi- effect to the statute, the interpretation of secnois, subject to minimum weights applying tion 944 in its application to the contract is to cars of various lengths as per tariff rules also necessary. That section is as follows: in effect on the day of shipment, the same be- “Whenever any property is received by a ing a special rate, lower than the regular common carrier to be transferred from one rates, or at a rate mutually agreed upon be- place to another, within or without this state, tween the parties, for and in consideration of or when a railroad or other transportation which said second party hereby covenants company issues receipts or bills of lading in and agrees as follows:
this state, the common carrier, railroad or The first and thirteenth of these covenants transportation company issuing such bill of are as follows: "(1) That he hereby releases | lading shall be liable for any loss, damage or the party of the first part from the liability injury to such property, caused by its negliof common carrier in the transportation of gence or the negligence of any other common said stock, and agrees that such liability shall carrier, railroad or transportation company to be that of a mere forwarder or private car- which such property may be delivered, or rier for hire. He also hereby agrees to waive, over whose line such property may pass; and release, and hereby does release, said first the common carrier, railroad or transportation party, from any and all liability for and company issuing any such receipt or bill of on account of any delay in shipping said lading shall be entitled to recover, in a propstock, after the delivery thereof to its agent, er action, the amount of any loss, damage or and from any delay in receiving same after injury it may be required to pay to the owner being tendered to its agent." "(13) And it is of such property, from the common carrier, further stipulated and agreed between the railroad or transportation company, through parties hereto that, in case the live stock whose negligence the loss, damage or injury mentioned herein is to be transported over the may be sustained.” This section was conroads or road of any other railroad com- strued in the Dimmitt Case, 103 Mo. 440, 15 pany, the said party of the first part shall be S. W. 761, and its application to the contract released from liability of every kind after there in question was determined. In that said live stock shall have left its road, and the case it was held that the general effect of the party of the second part hereby so expressly statute, and its evident purpose, were to apstipulates and agrees, the understanding of ply to common carriers the English rule of both parties hereto being that the party of the duty and liability in respect to the carriage first part shall not be held liable for anything of property beyond their own route, as disbeyond the line of the Missouri, Kansas and tinguished from the American rule, which Texas Railway, excepting to protect the was at the time recognized as the law in this through rate of freight named herein."
state. In that case the goods were consigned The contract was signed by both parties, to a point beyond the route of the receiving and under it defendants claim exemption carrier, and there was no express limitation from liability.
by contract not to carry to their destination. Defendants asked but the court refused The court held that, under the statute, the to give this instruction: "The court instructs receiving carrier was liable for the loss of the jury that under the contract read in evi- the goods occurring through the negligence dence, under which plaintiff's cattle were of the carrier to which it had delivered them shipped, the defendants are not liable for any for transportation to their destination. This damages sustained, by delays or otherwise, ruling was in accord with the decisions of the after said cattle were delivered by defendants English courts; but under the law as it exto the next connecting carrier."
isted in Missouri, prior to the statute, upon of its own motion, gave this instruction: "If, the facts shown to have existed, the receivfrom the evidence, the jury find that beyonding company would not have been liable for the limit of a reasonable time for the delivery the loss. There is no doubt that the statute, of plaintiff's cattle at the Union Stock Yards by its very terms, has the effect of applying at Chicago, Illinois, the Wabash Railway the English rule so far as it makes the reCompany negligently delayed said delivery, ceiving carrier responsible for the defaults of and thereby directly caused pecuniary dam- other carriers through whose agencies it un