Dolbear v. Norduft , 84 Mo. 621 ( 1884 )

Henry, C. J. —

This is an action of ejectment for a tract of land in Cape GHrardeau county. The petition is in the usual form, and thé answer contains a general denial and an equitable defence, the latter of which, in the view we take of the case, need not be fully set out. On a trial defendant had a judgment from which this appeal is proseeuted. In 1872 one Heinecke, who owned the land, executed a mortgage with power oí sale, by which he conveyed the land to Caroline Heinecke and Henry Volkerding, to secure two notes for eight hundred dollars each, one payable to said Caroline and the other to Yolkerding. The notes bore the same date as the mortgage and shortly after their maturity, the payees severally assigned them to Henry Norduft, and also jointly assigned to him the mortgage, which assignment was on the same day recorded. On the ninth day of December, 1878, Norduft, assuming that as assignee he had the right to do so, sold the land in pursuance of the terms prescribed in the mortgage, and the defendant became the purchaser at the price of $1,800; and in May, 1874, Henry Norduft, having made a deed to defendant for the land, acknowledged satisfaction of the mortgage on the margin of the record thereof. In 1880, Christian Heinecke and wife conveyed the land by general warranty deed to the plaintiff, who, it is alleged in the answer, had notice of the sale to defendant. A few weeks after defendant purchased the land, the mortgageor gave him possession, which he has ever since retained, residing upon the land.

By his purchase at the sale and his deed from Henry Norduft he acquired no legal title to the land. The assignee had no power to sell. The power to sell was given to the mortgagees, or, in certain contingencies, to the sheriff of the county. Their assigns were not named as parties who might sell. The sale was, therefore, a nullity, and the legal title remained in the mortgagees, against a purchaser from the mortgageor with notice that the mortgage was unsatisfied. There was sufficient evidence in this case to prove that plaintiff had notice, and all he acquired by his purchase is the equity of redemption.

The court found the issues for defendant, and we see no reason for disturbing the judgment, and it is affirmed.

All concur.