ÆäÀÌÁö À̹ÌÁö
PDF
ePub

therein prescribed, a sale by the sheriff, under | jury. The plaintiff had judgment, and the an order of the county court, under the power thus granted, foreclosed the mortgagor's equity of redemption, though the condition in the mortgage did not contain the quoted words in section 69, and provided for a sale at public outcry for cash in hand at the courthouse door, first giving 20 days' notice in some newspa-a per, stipulations not required by the statute.

2. In an action attacking a sale under a school-fund mortgage, it appeared that the mortgage provided that the sale should be for "cash in hand"; that the purchaser negotiated a loan from the same fund of an amount equal to the principal of the mortgage debt; that the securities given for such loan, together with a sum equal to the secured interest on the mortgage debt and the expense of the trust, were accepted in payment of the purchaser's bid, and the mortgage was satisfied and the deed delivered and filed for record two months after the sale; that the payment of the amount bid was delayed for the approval of the sale by the county court; and that the sheriff's deed recited that the land was sold under the power in the mortgage, and in compliance with the order of the county court, for cash, and acknowledged the receipt of the money. Held, that the sale was not open to attack on the ground that it was not made for cash, as was required by the terms of the mortgage.

3. Where one of several bonds secured by a mortgage was for the sum of $200, a sale, otherwise regular, under an order of the county court, and pursuant to the terms of the mortgage, was not invalid because the order of the county court recited that such bond was for $100. Honaker v. Shough, 55 Mo. 472, distinguished.

4. After a mortgagor had parted with all his interest in the land, the sheriff, under the mortgage barring the right of redemption, and an order of the court, exposed to sale "all the right, title, and interest of the said" mortgagor "in and to said tract of land." and, by his deed, conveyed "all the right, title, and interest of the said" mortgagor "in and to said real estate" to the purchaser. Held, that the legal title passed by the mortgage and the sheriff's deed to such purchaser, and the right of redemption of such mortgagor and those claiming under him was lost by the foreclosure.

5. The mere fact that the property conveyed by a deed of trust is sold in gross is not sufficient to avoid the sale.

6. A mortgage provided that the sale under it should be made at "the east door of the courthouse" in K. At the time it was made, the courts were being temporarily held in a schoolhouse in K. Held, that a sale at the east door of the courthouse afterwards constructed in K. was valid. Stewart v. Brown, 20 S. W. 451, 112 Mo. 171, followed.

Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

Ejectment by Benjamin F. Snyder against Chicago, Santa Fé & California Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

For prior report, see 20 S. W. 885. Gardiner Lathrop, J. C. Wallace, and S. W. Moore, for appellant. Crawley & Son, for respondent.

BRACE, C. J. This is an action in ejectment to recover possession of a strip of land in the S. W. 14 of section 11, 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 14 acres. The case was tried before the court without a

defendant appeals. The facts, so far as necessary to be stated for the purpose of this opinion, are that on the 28th of May, 1867, John B. Holloway, then the owner of said quarter section, executed a a mortgage to Chariton county, conveying the same to said county, to secure the payment of $1,584.54, borrowed by him of the school funds of said county. In January, 1882, the said Holloway sold and conveyed said quarter section to O. H. Woods and wife, subject to said mortgage. On the 9th of February, 1882, the said Woods and wife executed a deed of trust, with power of sale, conveying said land to James Snyder, trustee, to secure the payment to plaintiff of a note of said Woods for the sum of $1,050. In February, 1887, the defendant went into possession of the strip of land in said quarter section in controversy, and on the 7th of March thereafter the said Wood and wife executed and delivered a warranty deed therefor to the defendant. On the 5th of February, 1889, the quarter section was sold under the deed of trust of the 9th of February, 1882, and was purchased for the plaintiff by his attorney, who received the trustee's deed therefor, and transferred the title thus acquired to plaintiff. On the 12th of July, 1889, the quarter section was again sold under an order of the county court foreclosing said mortgage to the county of the 28th of May, 1867, and the plaintiff became the purchaser thereof, and received a deed therefor, in pursuance of such sale, and on the 25th of September, 1889, instituted this suit. The cause was afterwards tried in the circuit 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 the plaintiff was not estopped from asserting his right to the possession of the land in controversy under the legal title acquired by him by his deed made in pursuance of the sale made in foreclosure of the county mortgage, and that his right of action was not barred by the statute of limitations. Mo. 527, 20 S. W. 885.

112

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 Wood was not foreclosed by the sale made by order of the county court on the 12th of July, 1889, for the following reasons: "(1) 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; (2) 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; (3) 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; (4) because said mortgage deed is so vague, indefinite, and uncertain that a resort to foreclosure in court should have been resorted to; (5) 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; (6) 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; (7) 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 5th of February, 1889, is void for the following reasons: "(1) 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; (2) because said trustee's deed does not state that 30 days' public notice of the time, terms, and place of sale and of the property to be sold had been given; (3) 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; (4) 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 cov

ered 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 payable 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 some newspaper printed and published in Chariton county, to pay the aforesaid bonds and interest thereon, and shall make an absolute conveyance to the purchaser therefor." 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." Gen. St. 1865, p. 270, § 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 of sale 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 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 payment 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.

It ap

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. pears 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 pursuance thereof is beyond question. Schanewerk v. Hoberecht, 117 Mo. 22, 22 S. W. 949; Kennedy v. Siemers, 120 Mo. 73, 25 S. W. 512; Thresher Co. v. Donovan, 120 Mo. 423, 25 S. W. 536; Biffle v. Pullam, 125 Mo. 108, 28 S. W. 323. The only interest in the land that Holloway parted with by his deed to Wood was his equity of redemption. The only interest the defendant acquired by his deed from Wood 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.

5. It is next urged that the sale under the mortgage should be set aside, for the reason that it was made by the sheriff in mass. There is nothing in the circumstances of the sale in question to buttress such a complaint, and it is well settled law in this state that the mere fact that the property conveyed by a deed of trust is sold in gross is not per se sufficient to avoid the sale. Benkendorf v. Vincenz, 52 Mo. 441; Bank v. Stumpf, 73 Mo. 311; Chase v. Williams, 74 Mo. 429.

6. The sale was made at the "east door of the courthouse" in Keytesville, as provided in the mortgage. This courthouse was not constructed at the time the mortgage was executed, but the courts were then being temporarily held in the schoolhouse in said city. From this, defendant contends that the sale was not made at the place contemplated by the parties, and should therefore be avoid

This contention must be ruled against the defendant, on the authority of the recent case of Stewart v. Brown, 112 Mo. 171, 20 S. W. 451, in which the same question was maturely considered in banc, and settled.

7. We have thus noticed all the objections urged against the foreclosure proceedings under the school-fund mortgage, and find none of them tenable. We have also examined those that have been urged against the proceedings under the deed of trust, and do not think any of them sufficient to impair that sale and the deed executed in pursuance thereof. These objections, however, need not be noticed in detail, as the proper foreclosure of the school-fund mortgage "swept away the rights defendant had secured by its deed from Wood" (112 Mo., loc. cit. 540, 20 S. W. 885), and its defense in the case. The judgment is affirmed. All concur.

MCCANN et al. v. EDDY et al. (Supreme Court of Missouri. Dec. 10, 1895.) CARRIER-LIABILITY FOR NEGLIGENCE OF CONNECTING CARRIER-REGULATION OF COMMERCE.

1. As Rev. St. 1889, § 944, provides that, whenever any property is received by a carrier for transportation from one place to another, such carrier shall be liable for the negligence of any other carrier to which such property may be delivered, a carrier contracting to transport cattle to a point beyond the terminus of its line cannot, by contract, exempt itself from liability for the negligence of the carrier completing the transportation.

2. The construction given to said statute does not make it repugnant to Const. U. S. art. 1, § 8, giving to congress alone the power to regulate commerce among the states.

Sherwood, J., dissenting.

In banc. Appeal from circuit court, Monroe county; Thomas H. Bacon, Judge.

Action by McCann & Smizer against George A. Eddy and another, receivers for the Missouri, Kansas & Texas Railway Company, for negligence in the transportation of stock. Plaintiffs had judgment, and defendants appeal. Affirmed.

For former report, see 27 S. W. 541.

Jackson & Montgomery, for appellants. J. H. Rodes and R. B. Bristow, for respondents.

MACFARLANE, J. This action is to recover damages against defendants, as receivers of the Missouri, Kansas & Texas Railway Company, for negligence of duty in the transportation and delivery of 95 head of cattle from Stoutsville, in Monroe county, in this state, to Chicago, in the state of Illinois. Stoutsville is a station on the road operated by defendants. Hannibal is the eastern terminus of their road. From that point the Wabash Railway Company operates a road to Chicago. The cattle were delivered by defendants to the Wabash Company in a reasonable time and in good order, by which they were carried to Chicago. The negligence complained of was committed on the Wabash road, and by its employés.

So much of the contract under which the shipment was made as is necessary to an understanding of the questions involved is as follows:

"Rules and regulations: In case the owner or consignor agrees to hold these receivers free from liability from any and all causes enumerated in the following contract, also agrees to load, feed, water, and attend to the stock himself, etc., as specified therein, the rates agreed upon and specified in the contract will be given."

"Live-stock contract, executed at Stoutsville station, Mo., Nov. 12, 1890: This agreement, made between George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, parties of the first part, and M. B. Smizer, party of the second part, witnesseth that: Whereas, the receivers of the Missouri, Kansas and Texas Railway transport the live stock as per above rules and

regulations, and which are hereby made a part of this contract, by mutual agreement between the parties hereto: Now, therefore, for the consideration and mutual covenants and conditions herein contained, said party of the first part is to transport for the second party the live stock described below, and the parties in charge thereof as hereinafter provided, namely, six cars, said to contain 95 head of cattle m. or 1. o. r., from Stoutsville station, Missouri, to Chicago, Illinois, station, consigned to Brown Bros. & Smith, care Union Stock Yards at Chicago, Illinois, at the through rate of 172c. per hundred pounds, from Stoutsville, Missouri, to Chicago, Illinois, subject to minimum weights applying to cars of various lengths as per tariff rules in effect on the day of shipment, the same being a special rate, lower than the regular rates, or at a rate mutually agreed upon between the parties, for and in consideration of which said second party hereby covenants and agrees as follows: ***.

The first and thirteenth of these covenants are as follows: (1) That he hereby releases the party of the first part from the liability of common carrier in the transportation of said stock, and agrees that such liability shall be that of a mere forwarder or private carrier for hire. He also hereby agrees to waive, release, and hereby does release, said first party, from any and all liability for and on account of any delay in shipping said stock, after the delivery thereof to its agent, and from any delay in receiving same after being tendered to its agent." "(13) And it is further stipulated and agreed between the parties hereto that, in case the live stock mentioned herein is to be transported over the roads or road of any other railroad company, the said party of the first part shall be released from liability of every kind after said live stock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees, the understanding of both parties hereto being that the party of the first part shall not be held liable for anything beyond the line of the Missouri, Kansas and Texas Railway, excepting to protect the through rate of freight named herein."

The contract was signed by both parties, and under it defendants claim exemption from liability.

Defendants asked but the court refused to give this instruction: "The court instructs the jury that under the contract read in evidence, under which plaintiff's cattle were shipped, the defendants are not liable for any damages sustained, by delays or otherwise, after said cattle were delivered by defendants to the next connecting carrier." The court, of its own motion, gave this instruction: "If, from the evidence, the jury find that beyond the limit of a reasonable time for the delivery of plaintiff's cattle at the Union Stock Yards at Chicago, Illinois, the Wabash Railway Company negligently delayed said delivery, and thereby directly caused pecuniary dam

age to plaintiffs in the disposition of said cattle, the jury will find for plaintiff, and, in default of such finding, the jury will find for defendant." The evidence tended to prove the negligence charged and the resulting damages. The judgment was for plaintiffs, and defendants appealed.

1. This appeal involves the interpretation of the contract under which the cattle were shipped, and a determination of the effect that should be given the clause exempting defendants from "all liability of every kind after the cattle left its road." As the contract must be construed so as to give proper effect to the statute, the interpretation of section 944 in its application to the contract is also necessary. That section is as follows: "Whenever any property is received by a common carrier to be transferred from one place to another, within or without this state, or when a railroad or other transportation company issues receipts or bills of lading in this state, the common carrier, railroad or transportation company issuing such bill of lading shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained." This section was construed in the Dimmitt Case, 103 Mo. 440, 15 S. W. 761, and its application to the contract there in question was determined. In that case it was held that the general effect of the statute, and its evident purpose, were to apply to common carriers the English rule of duty and liability in respect to the carriage of property beyond their own route, as distinguished from the American rule, which was at the time recognized as the law in this state. In that case the goods were consigned to a point beyond the route of the receiving carrier, and there was no express limitation by contract not to carry to their destination. The court held that, under the statute, the receiving carrier was liable for the loss of the goods occurring through the negligence of the carrier to which it had delivered them for transportation to their destination. This ruling was in accord with the decisions of the English courts; but under the law as it existed in Missouri, prior to the statute, upon the facts shown to have existed, the receiving company would not have been liable for the loss. There is no doubt that the statute, by its very terms, has the effect of applying the English rule so far as it makes the receiving carrier responsible for the defaults of other carriers through whose agencies it un

« ÀÌÀü°è¼Ó »