Copeland v. Yoakum's Adm'r

Holmes, Judge, delivered the opinion of the court. ■ This was a petition in the nature of a bill in equity to enforce the specific performance of a contract, and to compel the personal representatives of the deceased party to accept satisfaction of a mortgage debt, and to discharge the mortgage and relinquish the possession of the land and property mortgaged, and for an account. The plaintiff had contracted with George Yoakum in his lifetime to build certain mills on the plaintiff’s land, and for the purpose of securing full payment according to the contract had conveyed the land, mills and other property to him by an absolute deed, and taken a bond from him in the penalty of 18,000, conditioned for the reconveyance of the property to the plaintiff upon the complete performance of the contract and payment of all sums due thereon. Before this was done, the said George Yoakum departed this life, and the defendant Jennings was appointed his administrator, and took possession of the property. This suit was brought against him as the personal representative of the deceased party, and the minor heirs of the deceased were also made parties defendant, who appeared and an [352] swered by attorney. A final decree was rendered at the March term of the Circuit Court of Polk county in favor of the plaintiff, whereby it was ascertained that the contract had been fully performed, and that all sums due had been paid, and that there was a balance of account due the plaintiff amounting to one thousand dollars ; and it was decreed that the defendants should be devested of all title in the real estate so mortgaged, and that the possession thereof should be restored to the plaintiff, and that the administrator should pay to the plaintiff the said sum of one thousand dollars and the-costs of the suit. At the March term of the court, 1865, the minor heirs, defendants, appeared by their guardian, and moved to set aside this decree for the reason that they had appeared by attorney and not by guardian , and their motion being overruled, they appeal' to this court. There can be no question that this absolute deed and the bond or defeasance of the same date, taken together, constitute a mortgage. This is too well settled to require the citation of authorities.—Tibeau v. Tibeau, 22 Mo. 77 ; Wilson v. Drumrite, 21 Mo. 325. Being a mortgage, when the debt or obligation secured thereby had been satisfied the conveyance became void, and the title was revested in the plaintiff by operation of law. It did not require to be devested out of the defendant and vested in the plaintiff by a decree of court. No title or interest in the real estate descended to these minor heirs. The mortgage was personal estate, and went to the administrator. For all the purposes of this suit the personal representative was the only necessary party. The statute concerning mortgages recognizes the personal representative (meaning the executor or administrator) as a sufficient party, for all the purposes of that act, after the death of the mortgagor or the mortgagee—Riley v. McCord, 21 Mo. 285. There was no need of these minor heir parties defendant at all. .The decree has no operative effect on them. Hie administrator had the possession of the property, and the decree requires him to restore it to the plaintiff, and pay [353] the balance ascertained to be due the plaintiff. It declares that the title shall be devested out of the defendants and vested in the plaintiffs ; but, as no title- was vested in them as heirs, they cannot be harmed by the decree. It is true that minors cannot appear by attorney : they must appear by curator, guardian, or next friend ; and this would ordinarily be a sufficient ground for setting aside or recalling a judgment—Randalls v. Wilson, 24 Mo. 76. But the error here was immaterial. The right of these minors cannot be affected by the decree. If they have any rights in the premises, they can assert them hereafter, notwithstanding this decree. But in the decree as rendered we see no substantial error, and it will not be reversed on an empty formality. Judgment affirmed. Judge Wagner concurs; Judge Lovelace absent.