Page:Federal Reporter, 1st Series, Volume 8.djvu/318

 304 FEDERAL REPORTER. �the trustee to sell under the deed of trust. After due notice the sale took place, on the first day of July, 1879, and the plaintili was the purchaser, for the sum of $6,000. A deed from the trustee to the plaintiff was duly executed, and to obtain possession under this pur- chase the present suit was brought. Upon trial before a jury there was verdict and judgment for the plaintiff. Defendant moves to set aside the verdict and for a new trial, upon grounds which will now be stated and considered. �1. It is insisted that the note should have been produced and offered in evidence in connection with the deed of trust. We are of the opinion, however, that the production of the note wias not neces- sary. It had been merged in the judgment, and the latter bad be- come the evidence of the debt secured by the deed of trust. It is well settled that where judgment is rendered upon a note it ceases to be and the judgment becomes the evidence, and the only evidence, of the debt. Wyman v. Cochrane, 35 111. 164; Ohio v. Gallagher, 93 D. S, 206; Hagg v.Charlton, 26 Pa. St. 202; Preeman on Judgments, 180, 181. It does not follow, as contended by defendant's counsel, that the plaintiff lost or waived any right under the deed of trust by at- tempting to collect the debt due from defendant by means of a judg- ment at law and a general execution. A deed of trust, under the laws of Missouri, is simply a mortgage with power of sale, and it is very clear that a change in the form of the debt from that of a promissory note into a judgment did not in anywise affect the rights or obligations of the parties under the deed of trust. The debt re- mained unsatisfied, and the deed of trust given to secure it continued in full force. Jones on Mortgages, §§ 1215, 1220, 1221; Lichty v. McMartin, 11 Kan. 565 ; Van Sant v. Allinon, 23 111. 30 ; Dunkley v. Van Buren, S John. Ch. 330. �2. It is also insisted that the court erred in refusing the application of the wife of defendant to become a party to this suit, and to be heard as such. It is very earnestly contended by counsel that inasmuch as the property in question was the homestead of defendant and his family, that therefore the wife of the defendant bas, under the home- stead law of this state, a present right of possession in her own right, independently of her husband, and that she is therefore a necessary party to the present action of ejectment. �The law of Missouri relating to homestead exemptions contains no provision limiting in any way the power of the husband and wife to alienate their homestead by deed of conveyance either with or without conditions. The power of the owner of a homestead to convey or mort- ��� �