Sargeant v. Rowsey

Sherwood, J. The plaintiffs, who are the heirs of John M. Sargeant, brought ejectment for the south half of the northeast quarter of section 1, township 55, range 23, and were successful in their suit, and from the judgment they recovered the defendant appealed. At one time John M. Sargeant owned the whole of the northeast quarter of section 1, township 55, range 23. He mortgaged the whole of it to Tracy Sargeant to secure the sum of one thousand three hundred ánd fifty dollars. After this John M. Sargeant sold and conveyed the north half of the northeast quarter to Merrill, who subsequently sold and conveyed the same to the defendant, Rowsey, all the deeds being general warranty deeds,. that to Rowsey containing this clause : “Subject, how [621] ever, to a certain mortgage by John M. Sargeant to Tracy Sargeant, bearing date,” etc. John M. Sargeant remained the owner of the south eighty, the land in dispute ; meanwhile Rowsey paid to Tracy Sargeant, on the mortgage mentioned, the sum of $864.45, these payments being made in different amounts, from 1871 to 1874. His deed from Merrill recited a consideration of only nine hundred dollars, while Rowsey testified that he paid Merrill for the land one thousand six hundred dollars, in cash and property. On the contrary Merrill, a disinterested witness, testified that Rowsey was to pay one thousand dollars of the mortgage debt as a part of the consideration of the land. And the payment of the $864.45 by Rowsey, which, taken with the nine hundred dollars, would, with interest, just about make up the sum of one thousand six hundred dollars, which Rowsey said was the real consideration of the land he bought of Merrill. And when these facts are considered in connection with the further facts of Rowsey accepting his deed from Merrill containing the clause subjecting the land to the payment of the mortgage already referred to, and when it is remembered that in the suit of Tracy Sargeant to foreclose that mortgage the payment by John M. Sargeant of the three hundred and fifty dollars and interest thereon, are admitted, the whole goes to make up a 'case very strongly upholding the view taken of this matter by the court below, the salient point being that Rowsey was to pay one thous- and dollars of the John M. Sargeant mortgage as part consideration of 'the land he bought of Merrill. Moreover, the plaintiffs read in evidence five prom-, issory notes, aggregating one thousand and sixty dollars, dated October 10, 1873, executed by defendant,. Rowsey, to their father, over four years after Rowsey received his deed from Merrill. Now it is altogether inconceivable that Rowsey would execute these notes to John M. Sargeant at a time when he held a claim against [622] him. for money which, he had paid on the mortgage, and which, according to his story, he was to look to him to £>ay, and if he', Rowsey, had to pay the mortgage, he was “to go onto him” for reimbursement. And it is to be noted that Rowsey offered no explanation as to how these notes came to be given, but merely objected to them as incompetent and irrelevant. N o doubt is entertained that if Rowsey did pay the $864.45 in exoneration of the John M. Sargeant mortgage, when he had made no agreement to that effect, he might, in proper circumstances, enforce the payment thereof out of the south half of the northeast quarter of section 1, township 55, range 23, as against the mortgageor, or his heirs, the plaintiffs in the present action, “for the heir sits in the seat of his ancestor,” and that portion of the mortgaged land retained by the mort.gageor would be primarily liable to the payment of the mortgage debt. This is elementary law. Hall v. Morgan, 79 Mo. 47. Relative to the decree which Rowsey obtained in the suit brought against John M. Sargeant and Rowsey by Tracy Sargeant, to foreclose the mortgage given by .John M. Sargeant, and in which Rowsey filed a cross-bill setting up similar equities to those now set up in the present action, and in which he obtained a decree, as he alleges, for the sale of the land in dispute, and which, it ■seems, was sold under that decree, at which sale he bought ;■ that such sale was a nullity, for the reason that the death of John M. Sargeant, against whom the suit was brought, was never suggested, nor the suit revived against either of his heirs, the present plaintiffs; nor ■could such a revival occur until such suggestion was made. Nor was there any order of publication made by the court against Adelbert Sargeant, one of the plaintiffs, though the copy of publication recites such order as having been made. And the appointment of Mirick as the .guardian ad [623] litem of AcLelbert or Burton Sargeant, a minor, was wholly unauthorized, as he was the attorney for Tracy Sargeant, plaintiff in the same suit, and, therefore, was incompetent to act in a capacity requiring an absence of •antagonistic interests when representing those of an infant. Nor does it help the matter that the plaintiff in . "that suit, Tracy Sargeant, and the defendant therein, Rowsey, consented of record to Mirick’s appointment; And unless the minor defendant in that suit, Burton Sargeant, was properly, brought in by service of process, there was no authority for a guardian to be appointed for, or to represent, him. Shaw v. Gregoire, 41 Mo. 407; Railroad v. Campbell et al., 62 Mo. 585. Nor does the transcript contain any answer of the alleged guardian ad litem. A decree thus rendered, even if otherwise unexceptionable, cannot be regarded as possessing any legal validity. For these reasons the judgment should be affirmed. All concur.