Summary
In Homan v. Connett, 348 Mo. 244, 152 S.W.2d 1053 (1941), it was held generally that a trustee's notice by publication is sufficient and that no additional notice need be given to the debtor.
Summary of this case from Spires v. EdgarOpinion
June 10, 1941. Rehearing Denied, July 25, 1941.
1. DEEDS: Corporations: Attorney in Fact. The Federal Land Bank of St. Louis can make a valid conveyance through an attorney in fact.
2. MORTGAGES AND DEEDS OF TRUST: Foreclosure: Notice. Where a mortgage contained a power of sale in favor of the mortgagee and the mortgaged property was advertised for sale by the mortgagee in compliance with the terms of the mortgage and the statute, no personal notice to the mortgagors was necessary, and a foreclosure proceeding in court was not necessary.
3. CORPORATIONS: Foreign Corporations: Federal Corporations. The Federal Land Bank of St. Louis, being a corporation created by Act of Congress, is not a foreign corporation.
Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.
AFFIRMED.
Earl C. Borchers for appellants.
(1) No trustee was appointed but on the contrary foreclosure was attempted by an alleged agent and attorney in fact without notice to the mortgagor, either actual or constructive, of the appointment of said alleged agent and attorney in fact before publication of the purported foreclosure sale notice, or before said alleged foreclosure sale. Sec. 3135, R.S. 1929; Newton v. Burial Park Cemetery, 326 Mo. 901, 34 S.W.2d 118. (2) The mortgagee's deed, being executed by agent and alleged attorney in fact, was not a valid instrument of conveyance and did not in fact constitute an act of the corporation and transferred no title. Sec. 3017, R.S. 1929, now Sec. 3404, R.S. 1939, as amended by Laws 1937, p. 203. (3) The note and mortgage executed by plaintiffs and identified as Plaintiffs' Exhibit A2 constituted a written contract between the parties and as such said contract could not be altered or changed so as to enlarge or diminish the obligations of the parties thereto, excepting by the mutual consent and action of both. Adams v. Boyd, 58 S.W.2d 704, 332 Mo. 494; United States v. Chemical Foundation, 294 F. 300. (4) Under the law of Missouri and under the statutes of Missouri in such cases made and provided, a trustee in a deed of trust or in a mortgage must be a resident of Missouri, or have as a cotrustee a resident of Missouri. Therefore, The Federal Land Bank of St. Louis was without legal authority to act in the capacity of trustee or in any other capacity to sell the real estate belonging to these plaintiffs without first having obtained the appointment of a qualified trustee or agent through a court of competent jurisdiction to foreclose said mortgage or to have proceeded to foreclose by a decree of a court of competent jurisdiction. R.C.L., pp. 559, 560, sec. 543; 11 U.S. 205; 41 C.J. 378, sec. 175; Sec. 3095, R.S. 1929.
John C. Landis, III, John Connett, Walter R. Brown, C.S. Hale and Guy V. Head for respondent.
(1) Actual notice prior to statutory foreclosure under power of sale mortgage is not necessary; notice by proper publication sufficient. Sec. 3075, R.S. 1929, now Sec. 3462, R.S. 1939; Sec. 3076, R.S. 1929, now Sec. 3463, R.S. 1939; Sec. 3077, R.S. 1929, now Sec. 3464, R.S. 1939. (2) The mortgagee's deed from The Federal Land Bank of St. Louis, a corporation, was a valid instrument of conveyance and transferred full and complete title to the Buchanan County National Farm Loan Association, a corporation, and no error was committed in admitting the same in evidence. Sec. 3017, R.S. 1929, now Sec. 3404, R.S. 1939, as amended 1937; Sec. 3029, R.S. 1929, now Sec. 3416, R.S. 1939; Sec. 3048, R.S. 1929, now Sec. 3435, R.S. 1939; Sec. 3075, R.S. 1929, now Sec. 3462, R.S. 1939; Sec. 4537, R.S. 1929, now Sec. 5008, R.S. 1939; 12 U.S.C.A. 676; Strother v. Barrow, 151 S.W. 960, 246 Mo. 241; Grafeman Dairy Co. v. Northwestern Bank, 235 S.W. 435, 290 Mo. 311; Hendren v. Neeper, 213 S.W. 839, 279 Mo. 125; Hall v. Bank, 46 S.W. 1000, 145 Mo. 418; St. Louis Public Schools v. Risley, 28 Mo. 415; 41 C.J., p. 939; Long v. Powell, 48 S.E. 185; Federal Land Bank of St. Louis v. Bross, 122 S.W.2d 35; Perry v. Price, 1 Mo. 349. (3) The Federal Land Bank of St. Louis is a corporation organized and existing under and by virtue of an Act of Congress of the United States and is domiciled in St. Louis, Missouri, a resident of this State. No restraint is implied against a nonresident corporation by the laws of this State, acting as a mortgagee, but said restraint is exclusively directed against such corporations acting as trustee. Sec. 3095, R.S. 1929, now Sec. 3482, R.S. 1939; Commerce Trust Co. v. Ellis, 167 S.W. 975; 12 U.S.C.A. 676.
This suit was filed by plaintiff, Raymond V. Homan, Sr., and his wife, Hattie Homan, to quiet title to twenty acres of land situated in Buchanan County, Missouri, being the north half of the southeast quarter of the southwest quarter of section twenty-five, township fifty-seven, range thirty-four. The defendant, Mary F. Connett, claimed her title through conveyances having their origin in the foreclosure of a mortgage. There was a judgment for the defendant and plaintiffs appealed.
It was conceded that plaintiffs owned the land in the year 1922. In that year they executed a mortgage covering the land in question to secure the payment of a note in the sum of $7,500, made payable to the Federal Land Bank of St. Louis, Missouri. This mortgage was foreclosed and the sale was had on October 2, 1936. It was plaintiffs' contention at the trial that the proceedings under which the sale was had were fatally defective and therefore plaintiffs were not divested of their title. By the terms of the mortgage the mortgagee was authorized, in case a default occurred, to sell the land at public auction at the court house in Buchanan County, Missouri, first giving twenty days' public notice of the sale in a newspaper published in the county. The mortgage further authorized the mortgagee upon such sale to execute and deliver a deed conveying title in the land to the purchaser at the sale. The validity of the mortgage was not questioned. That there was a default was conceded. It was also conceded that a notice was published as required by the terms of the mortgage and that plaintiffs were not personally notified of the sale. The mortgage did not provide for a sale by a trustee and a trustee was not named therein. The Federal Land Bank did not seek the appointment of a trustee through any proceeding in any court. The Federal Land Bank of St. Louis, by a resolution of its board of directors, appointed E.B. Garner its attorney in fact and authorized him to prepare public notices of foreclosure proceedings, to sell the land and convey the same to the purchaser. The Federal Land Bank, through its board of directors, also declared a default in the payments due on the note by the Homans. It ordered a foreclosure of the mortgage. Following these actions of the board of directors of the Federal Land Bank, Garner proceeded to advertise the Homans' land for sale. He executed a deed to the purchaser which was signed in the following manner:
"The Federal Land Bank of St. Louis, a corporation "By: E.B. Garner Agent and attorney in fact. "(Corporate Seal)
"Attest: "E.B. Harris, "Assistant Secretary"
This was followed by an acknowledgment before a notary public.
Appellant in his brief says:
"The mortgagee's deed, being executed by agent and alleged attorney in fact, was not a valid instrument of conveyance and did not in fact constitute an act of the corporation and transferred no title in and to the real estate in question to the Buchanan County National Farm Loan Association, or to any other person, particularly the defendant, Mary F. Connett.
"Sec. 3017, R.S. Mo. 1929, now Sec. 3404, R.S. Mo. 1939, as amended by Laws of 1937, p. 203."
This identical question was before the St. Louis Court of Appeals in Federal Land Bank of St. Louis v. Bross, 122 S.W.2d 35, l.c. 39 (2-4) (5). It was there decided that a conveyance by the Federal Land Bank through an attorney in fact was a valid conveyance. The question was well considered in that case and we approve the reasoning and conclusion reached by the Court of Appeals without reconsidering the question here.
Appellant alleged in his reply brief that authority of an agent or attorney in fact must be recorded, otherwise a notice of a foreclosure sale by the attorney in fact does not constitute constructive notice. [1055] The record in this case shows that the appointment of E.B. Garner as attorney in fact was recorded. Appellant's point is therefore without merit.
Appellant argues that no personal notice of the purported sale was given the Homans. The notice, as given, complied in all respects with the provisions of the mortgage and with the statute pertaining to such notices. [See Sections 3463, 3464, R.S. Mo. 1939.] The notice was therefore sufficient and personal notice was not necessary. Since the mortgagee followed a proceeding authorized by the mortgage, which was not contrary to the provisions of our statute, it was not necessary for the Federal Land Bank to foreclose the mortgage through a proceeding in court. See Section 3462, R.S. Mo. 1939, which reads in part as follows:
"All mortgages of real or personal property, or both, with powers of sale in the mortgagee, and all sales made by such mortgagee or his personal representatives, in pursuance of the provisions of such mortgages, shall be valid and binding by the laws of this state upon the mortgagors, and all persons claiming under them, and shall forever foreclose all right and equity of redemption of the property so sold:"
Appellant in oral argument and also in his brief made a number of points based on the assumption that the Federal Land Bank of St. Louis was not a Missouri corporation but a foreign corporation. Appellant relied upon the provisions of Section 3482, R.S. Mo. 1939, prohibiting any foreign corporation from acting as a trustee in any deed of trust or other conveyance. A sufficient answer to that contention is that the Federal Land Bank of St. Louis is not a foreign corporation. In 14a C.J. 1214, sec. 3924, we read:
"A corporation created by an act of congress with powers co-extensive with the Union, assuming of course that in creating it congress acts within the scope of its powers, is not a foreign corporation within any state of the Union, any more than an act of congress is a foreign law within any state of the Union."
Missouri is a State of the Union and therefore the Federal Land Bank, domiciled in St. Louis, Missouri, is not a foreign corporation.
The judgment of the trial court is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.