186 Mo. App. 391 | Mo. Ct. App. | 1914
— On March 17, 1909, the defendant and one Jones were the owners of a tract of land in New Madrid county, Missouri, and on that date conveyed same to the plaintiffs by warranty deed for the recited consideration of $5600. This land and an adjoining tract were then encumbered by a deed of trust dated June 27,1904, executed by former owners of both tracts to secure a note for $3849.37, at six per cent interest, given for the purchase price in favor of the Himmelberger-Harrison Lumber Company. The deed of defendant and Jones to plaintiffs, in addition to the usual covenants of warranty, contains this special covenant: “There is a deed of trust against this and other lands- in favor of Himmelberger-Harrison, of Cape Girardeau, Mo., for $3800, which the said Virgil
The, petition alleges that defendant McKay and said Jones breached this special and other covenants of the deed by failing and refusing to pay the amount secured by the deed of trust or sufficient of it to discharge the land conveyed at any time and that, as owners of the land, these plaintiffs were compelled to pay and did pay $561.15 on August 11, 1911, to the holder of this deed of trust in order to free this land of the said encumbrance. The plaintiffs asked and obtained judgment for this amount with interest thereon from the time of payment to' the date of trial.
The suit was originally against the defendant McKay and the heirs-of his co-warrantor, Jones, but as each of them were jointly and severally liable and McKay could have been sued singly, it is not necessary to discuss the manner or reasons for the suit being dismissed as to such heirs and the final judgment being against McKay only. We will treat him as being the sole defendant.
The defendant’s answer denied that plaintiffs were compelled to pay the amount claimed by them in order to release the land in question from the lien and encumbrance of this deed of trust. It then sets up the special defense that this deed of trust encumbered other lands which were liable pro rata for their proportion of the mortgage debt; that defendant had paid that proportional part of said deed of trust which would release the land in question in conformity with the special covenant in the warranty deed to plaintiffs, except a balance of $250; that defendant on a date subsequent to the payment by the plaintiffs tendered the plaintiffs the said $250; that defendant gave notice to plaintiffs on the day of making this tender that the owner of the other tract of land was liable
Seeing that defendant had covenanted with plaintiffs that he would cause this land conveyed to them to be freed of this encumbrance, we do not see how he can escape liability for not doing so because the deed of trust constituting the encumbrance covered other lands liable pro rata for their share of the mortgage debt; nor because the defendant paid his proportional part of the mortgage debt when he had covenanted to pay all; nor because the owner of the other tract was liable for this unpaid balance. As to plaintiffs these matters are res inter alios acta. As between the owners of the respective tracts of land these facts would constitute a liability for contribution to him who had paid more than his just share in the discharge of the deed of trust, and so it might constitute a defense as against the owner of the secured note provided he had made a valid agreement to hold the respective landowners for only the proportional part of each. No agreement, however, either express or implied, made by the defendant with the other landowner or with the holder of the secured note to which plaintiffs were not parties could relieve defendant of his obligation to plaintiffs to comply, with the terms of his warranty. After complying with his covenant with plaintiffs, the defendant may seek redress or contribution from those failing in their obligation to him on any contract, express or implied. A maker of an obligation cannot defend against its full performance because some one else is equally liable with him or has agreed with bim to be wholly so. The court should have stricken out these special defenses, but, as it made an equivalent ruling on the evidence offered to sustain the same, the plaintiffs got the benefit of a correct ruling. It should be stated, however, that while defendant proved that he and the other landowner made a division of the amount due on this deed of trust and an agree
The only issue in the case arises from defendant’s denial that plaintiffs were compelled to pay $561.15 to release the land from the encumbrance of the deed of trust and on this point the defendant raised the question as to the sufficiency and competency of plaintiffs ’ evidence. Let us consider what plaintiffs had to prove on this point. A consideration of defendant’s evidence will aid in doing this. The defendant contends that his evidence shows that he owed no more than the $250 tendered to plaintiffs and no more need have been paid by them. Defendant arrives at this conclusion by testifying that he and the other landowner made an agreement as to the amount each should pay and that he had paid his proportional part down to that sum or less. He says that he does not know whether the owner of the other tract had paid his part or not and that he does not know how much was due and unpaid on this secured note. The owner and holder of the secured note exhibited at the trial a statement taken from its books showing the times and amounts of the several payments made and credited on the note, and defendant does not claim that any payment made by himself was not pr'opertly credited and he does not know whether the owner of the other tract made any payments not properly credited. He does not claim that the amount paid by plaintiffs is not the correct amount based on these payments. His contention, therefore, is reduced to this: That as the other landowner ought, as between them, to have paid his agreed share, it is incumbent on plaintiffs to show that he did not do so.
We need not decide the point just discussed for the reason that plaintiffs went further and proved, prima facie, at least, that the amount paid by them was actually due and unpaid on the secured note. One of the plaintiffs testified that after waiting more than two years for defendant to discharge his covenant to remove this encumbrance and after repeated requests to and promises by defendant to do so, defendant was notified to be present at the final adjustment and payment of the amount demanded; that, on defendant failing to take any action or be present, the plaintiffs paid the amount demanded by the holder of the note and that such holder would not release the land for anything less. This witness’s evidence was clearly competent to prove these facts and may be rejected for
The fact that the secured note, which was delivered to plaintiffs on their paying same, was not produced at the trial is not material. This is not a suit on that note and its -absence was accounted for. The amount, date and rate of interest are-not in dispute. There is no evidence that payments were endorsed on the note not shown by the holder’s books. The calculation of the amount due was made while the note was in the hands of the holder and, as stated, there is no showing that any payments made were not properly credited. The fact that the holder of the note, after receiving full payment of the same, released not only the land of the plaintiffs but the other tract covered thereby was but a performance of its duty and in nowise prejudices the rights of the defendant. The defendant may have rights growing out of this transaction which he can enforce against other parties, but we fail to find any valid defense to the plaintiffs’ cause of action. Minor alleged errors have been considered but we find them not substantial.
The judgment will, therefore, be affirmed.