Boatmen's Savings Bank v. Grewe

84 Mo. 477

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Brack, J.

This appeal was argued and submitted with the case of Gitchell v. Kreidler, ante, 472. The questions common to them both were considered in that case. The note secured by the deed of trust in this case, was assigned to the respondent more than one year before the tax suit was commenced. The trustee and the payees were made defendants but the respondent was not. It is well settled law that the assignment of the note carries the security. The assignee stands in the place of the payee. Neither the trustee nor the assignor can alone enter satisfaction of the mortgage debt. Generally the assignee is a necessary party to all proceedings affecting his security, in order to be bound thereby. No reason is perceived why there should be any exception made in this class of cases. He is no more affected by the tax suit judgment than the payee would have been, had there been no assignment and the payee had not been made a party to the suit.

The court in which that judgment was entered allowed the sheriff to amend his return to the special execution, so as to show a sale of the property to parties other than those disclosed by the original return, but to the same persons to whom deeds had been made. It was entirely competent for the court, upon a proper •showing, to allow the amendment to be made. It is no objection that the amendment was made after this suit was commenced. Blaisdell v. Steamboat Wm. Pope, 19 Mo. 158; Corby v. Burns, 36 Mo. 195; Webster v. Blount, 39 Mo. 500.

The judgment of the court of appeals is reversed and that of the circuit court is affirmed.

All concur.