McNair v. Lott

1. To extinguish or bar an equity of redemption, -where lapse of time alone is relied on, twenty years must have elapsed since the last recognition of the mortgage. 2. A demurrer should he resorted to to raise the defence of the statute of limitations, if at all, only where it clearly appears that the plaintiff's case has been fully stated, and that being so stated no recovery can be had. 3. A., in the year 1819, to secure the repayment of a loan of money, executed an instrument in the Trench language in the form of a Trench hypothecation and containing the words, “ oblige', engage, ollientí, affecté et hypothequé: held, that this was a mortgage within the act of October 21), 1807, concerning mortgages. (1 Terr. Laws, p. 182.)

Appeal from St. Louis Land Cowrt. Demurrer to a petition. Plaintiffs state in their petition substantially that in the year 1819, the late Ool. Charles Dehault Delassus was the owner and proprietor of, and as such had possession of, a certain tract of twenty arpens, known as survey No. 332, in the name of Joseph Brazeau; that af-terwards said Charles became indebted to Baptiste Douchou-quette and Marie Thereso Brazeau, in the sum of $4000, for money loaned him, for which he agreed to pay each at the rate of ten per centum per annum until paid; and to secure the payment of one-half of said sum to each, he did on the 7th day of January, in the year 1819, execute and deliver to each of them his four several promissory notes, each for the sum of $200, due and payable on the 20th December, in the years 1819, 1820, 1821, and 1822, with interest on each at the same rate from maturity ; that he at the same time made and delivered to each a deed of conveyance, in the nature of a mortgage,* of and to said tract of land, which said deeds had conditions that in the event said Charles paid the sum of $2000 to each on or before the 20tli of December, 1823, with interest, the said deeds were to become inoperative, and said interest notes not due were to be delivered np and canceled; that said deeds and notes were signed and sealed, and were written in the French language; were accepted and were duly recorded ; that in the year 1819, by written agree-meat made between said Baptiste and Marie, the former was vested with power to manage her estate, and at her death became absolute owner thereof; that he assumed such management during her life and at her death owned and claimed her property, including the debt due as aforesaid ; that the first interest note due said Marie was paid and canceled; that the one first due said Baptiste was reduced by credits to fifty-five dollars; that afterwards the remainder of said indebtedness being due and unpaid, said Baptiste, in the name of himself and said Marie respectively, instituted proceedings in the Circuit Court of said county — one to foreclose the equity of redemption of said Charles under said deeds and sell said lands — the other by action of assumpsit to obtain judgments for said debts clue each as aforesaid; that at the July term of said court, 1824, without service of process, judgments were rendered in favor of each for the sale of said land on a particular day named ; also for the principal and interest due each and secured by said deeds in the actions of assumpsit; whereby each obtained judgments in two forms of proceedings in the same court, at the same time, for the same debt due each as aforesaid ; upon each of which judgments executions issued in 1824, and were not executed but returned by order of plaintiffs to clerk’s office. Afterwards, in 1827 — said Charles then being a resident of the state of Louisiana, and said judgments unsatisfied — said Baptiste, with the knowledge of one Theodore D. Papin, his agent and son-in-law, caused a fi. -fa. to issue against said Charles (then absent) on the judgment in assumpsit in his name, and the said tract or survey levied on, and all the right, title, estate, &c., of said Charles therein sold subject to all prior judgments and decrees ; that said Papin became the purchaser at the bid of $1050 ; that before and at the time of said levy, sale and purchase by Papin, said tract of land was in the actual possession, use and enjoyment of the said Baptiste in virtue of said mortgage deeds ; that Papin, with full knowledge of all the above facts in regard to said judgments and land, and knowing that his said purchase was void and inoperative, did, on the 19th day of December, 1827, purchase of said Baptiste and Marie their right and estate in said tract of land, and received possession- thereof, and a deed of conveyance thereof; that afterwards said Marie died and by the said agreement made with said Baptiste, in 1817, her interest in said judgments passed to and became vested in him ; that in 1834 said Baptiste made his will, constituting said Papin and bis son Baptiste Douchouquette, executors thereof, and then died ; that said will was duly proved ; that said Papin and Baptiste the son assumed on themselves, in due form of law, the execution thereof; that afterwards, on the 16th of December, 1836, said Charles paid to the executors the full amount of each of said judgments or debts secured by said deeds of mortgage; that as evidence thereof Papin and Douchouquette, as executots, in the vacation of said Circuit Court, in the presence of the clerk thereof, did on the minutes or record of each of said judgments enter on the margin of each an acknowledgment of “ full and entire satisfaction,” which acknowledgment was signed by them and attested by the clerk, whereby said Charles became released from said judgments; that from neglect or ignorance they failed to enter a like acknowledgment in the margin of the record of said deeds of mortgage in the recorder’s office; that they failed to execute a deed of release of said land as required by law; that said Papin had assigned and transferred his right to the use and possession of said land, excluding said mortgage debts, to one William T. Phillips, who entered and took possession of the same with full knowledge of all the before recited facts in regard to said land; that after the payment of said judgments, in 1836, said Charles returned to his home in the state of Louisiana and there died intestate, leaving Augustus Delassus, his only child, heir and legal representative, who did not come to the knowledge of his right and claim to the land until 1848 ; {various deeds of conveyance are here set forth from said Augustus Delassus to plaintiffs ;] and the plaintiffs charge and aver that the execution, under which said Papin purchased said land in 1827, issued on a judgment for the identical debt due said Duchouquette, and to secure the payment of which said deed of mortgage was executed by said Charles in 1819, and none other; that the same was in due form of law paid and satisfied in 1836 — all of which was known to said defendants and each of them at the time they entered and took possession of said land ; that said defendants, and each of them and those under whom they claim parts of said land, entered and took possession of the same under the right and title of the said Charles, and none other; that they now refuse to surrender possession thereof and release their claim, although requested so to do ; that said defendants, and each of them, and those under whom they claim, and hold parts of said land, entered and took possession thereof as trustees by deeds of assignment from said mortgagees, Baptiste and Marie, to Papin and from him to said Phillips as aforesaid; that the sale and purchase under said execution by Papin, was a fraud on the rights of said Charles, and the deed executed by the sheriff as evidence thereof was inoperative and void; that should said sheriff’s deed to Papin be considered valid and operative to pass the fight of said Charles to redeem said land, then plaintiffs charge that the payment of said mortgage debts and judgments by said Charles, in 1836, did vest in him all the right of said mortgagees, Baptiste and Marie, to subject said tract of land to the payment of said debts in the possession of defendants, assignees of said Papin, as before stated ; that since said land was surveyed, in 1836, there has been much accretion thereto on the river front by deposit and other causes, all of which is the property of plaintiffs, and is now claimed by defendants as assignees of said Papin ; that no part of the rent of the said tract has been accounted for to the said Charles in his lifetime or since his death, to his son and legal representatives or plaintiffs; nor has the said sum of $10,693.28 paid by said Charles, in 1836, to the executors of Douchouquette, or any part thereof, been refunded to him, his said son, or plaintiffs. Wherefore plaintiffs pray that defendants, and each of them, be compelled to surrender to plaintiffs said land and the accretions thereto, as now held and claimed by them, and by proper deed release all right thereto as derived from said Papin; or, that said land be subjected to the payment of said two mortgaged debts paid by said Charles, in 1836, with interest thereon, to-wit, said sum of $10,693.28 ; that plaintiffs be restored to the possession and quiet enjoyment of said land and all accretions thereto, with a reasonable compensation for the rents and profits of said land, and damages, <fec., and for such other and further relief, &c. This petition was filed in the St. Louis Land Court Feb. 22,1856. The defendants demurred to the petition, and set forth as grounds of demurrer that the petition does not state facts sufficient to show a cause of action; that there is a defect of parties plaintiff; also of parties defendant; that all the parties appearing to be interested and through whom the defendants severally claim title, are not made parties defendant ; that the petition is multifarious in various respects; that it does not show that all the parties claim through a common source of title, nor does it show of what specific land either of defendants stand seized or possessed, nor who is seized, nor through whom they or either of them claim title ; that plaintiffs do not show what specific relief they are entitled to, nor do they show that they are entitled to any relief; nor do they show how they claim general damages against all the defendants jointly, when it appears that each defendant is entitled in his own right; also that the prayer for judgment is incongruous and inconsistent in claiming the possession of the land or the payment of the amount of the mortgage debt. The demurrer was sustained. I. The petition is not multifarious. All persons who have a real interest in the subject matter — title and possession of the land — are before the court. II. The facts stated in the petition present an equitable cause of action not prejudiced by lapse of time. 1st. In virtue of sheriff’s sale and deed to Papin, no right or title passed ; but, on the'contrary, was void and inoperative. (2 Burr. 969; 2 Johns. Oh. 130; 7 Dana, 66; McNair v. O’Fal-lon, 8 Mo. 203; Robertson v. Campbell, 8 Mo. 616; 12 Mo. 117.) 2d. The deeds of assignment from the mortgagees to Papin, and from him to Phillips, and from him to respondents, vested no right or claim, other than to hold the naked possession of the mortgaged land subject to the redemption of Delassus. (2 Sto. Eq. 1019-23 ; 2 John. Ch. 129 ; 14 Pick. 331; 17 Mass. 419, 289 ; 1 Hill on Mortg. 163 ; 9 Mo. 280 4 Johns. 43.) 3d. The payment of the mortgage debts, in 1836, to the executors of Duchouquette, and satisfaction thereof entered on the records of the judgments, was notice to respondents of such payment, whereby their right to possession ceased. 4th. As no evidence of payment was entered on the margin of the record of the mortgage deeds or release executed, as required by law, the remedy of appellants is in equity, in order to reclaim possession, and, at the same time, quiet their title. (2 Burr. 978 ; 17 Mass. 419; 10 Mo. 229 ; 1 Terr. Laws, p. 46; R. C. 1826, p. 410, § 15; R. 0. 1835, p. 340, § 18 & 22.) 5th. Until 1836, Delassus ■ or his legal representatives had no right of entry or cause of action. Hence lapse of time has not operated to their prejudice before or since that period. 6th. As respondents, and those under whom they claim, are mere tenants or quasi trustees, limited and subservient to the relation of mortgagor and mortgagee, they are precluded from protection by lapse of time in a court of equity. 7th. Whether any title in the equity passed to Papin, or whether payment of mortgage debts was properly made'to him or not, still, under all the circumstances and facts of this case, lapse of time does not operate against appellants. (See 2 B. Monr. 206 ; 9 Wheat. 498 ; 2 Hill, on Mortg. 1-12; 2 Mo. 94.) I. The statute of limitations is a complete bar to the relief sought, no disability being shown to have existed when the right to redeem first accrued or.descended. The laches bars all claim, and may be relied upon on demurrer. (Taylor v. Blair, 14 Mo. 437; Smith y. Clay, 3 Brown Ch. 640 ; Dema-rest y. Wyncoop, 3 John. Ch. 129; Kane v. Bloodgood, 7 John. Ch. 93; Provost v. G-ratz, 6 Wheat. 481; Hughes v. Edwards, 9 Wheat. 489 ; Willison y. Matthews, 3 Pet. 44; Piatt y. Nattier, 9 Pet. 416 ; Elmendorf v. Taylor, 10 Wheat. 168; Miller v. McIntyre, 6 Pet. 67 ; Hunt v. Wickliffe, 2 Pet. 212; 5 Pet. 493; Bollinger v. Chouteau, 20 Mo. 90 ; Biddle y. Mellon, 13 Mo. 335 ; Keeton’s heirs v. Keeton, 20 Mo. 531.) II. In order to redeem, all parties in interest must be made parties to the bill. Only a portion of those interested against the plaintiffs are made parties to the case at bar. III. If Papin could ever have been regarded as a trustee for the plaintiffs, the purchase of the land at sheriff’s sale, and entry thereunder upon the land claiming the same as his own, was an open and notorious disclaimer of the trust, and the statute commenced running from that time. (20 Mo. 530; 20 Mo. 488; id. 89.) After the conveyance in 1831 to Phillips, Papin could not in any way affect the rights of his own vendee. Having parted with all his rights to the property in 1831 to persons who in 1836, when he settled with Delassus, were holding adverse to him and Delassus, his power over the property was gone. IY. The instrument claimed to be a mortgage is not a mortgage, but a French hypothecation, passing no estate in the land, being a mere pledge of the land to secure the debt; and being a mere lien on the land, it was lawful for the same to be sold under the judgment in assumpsit, and the sale to Papin, who at the time held no interest in the land, passed the title. Y. The claim is stale. The settlement between Delassus and Papin took place December 16,1836. The petition in this case was filed February 2, 1856, within a few months of twenty years from date of the settlement. (See Taylor v. Blair, 14 Mo. 437.)