61 Mo. 160 | Mo. | 1875
delivered the opinion of the court.
This action was brought to recover the amount due by the defendant. Beverly G. Lee, to plaintiff by a promissory note in the petition named, and to foreclose a mortgage given to secure the payment of the amount due by said note.
The suit was originally brought against the three first named defendants, Gracy G. Lee being afterwards made a party defendant on motion of the plaintiff. The substantial parts of the petition are as follows: that defendant Beverly. G. Lee, together with James Hale and William Allen, made a promissory note, dated December 12th, 1860, (which was filed with the petition) whereby said defendant, Beverly G. Lee, .promised to pay to the order of said Allen, four months after the date thereof, six hundred dollars, with interest after maturity, at the rate of ten per cent, per annum, expressed to be for value received, negotiable and payable at the banking, house oí Robt. Aull, Lexington, Mo., without defalcation or discount, and then delivered said note to said William Allen,
The petition then states that the said note for six hundred dollars remains unpaid, and that all of the personal property named in the mortgage has been disposed of, so that nothing remains out of which plaintiff’s debt can be made, except the land named in the mortgage and petition ; that the defendants, Limerick and-Johnson, claim the said right to the equity of redemption in said lands and in the debts secured to Gracy G. Lee, by said mortgage. The petition then prays the court to determine the rights of the several parties, plaintiff'and defendants respectively, and for a judgment for the amount due by the note, for six hundred dollars, and for a foreclosure of the equity of redemption in the land named, and that the same be sold, etc., and for general relief.
The defendants answer separately, and set up several distinct defenses to the action ; but as the case is now presented
The answer of each of the defendants denies that the'mortgage set forth in the petition was executed to secure the note described in and filed with the plaintiff’s petition, but the answers aver that the mortgage was executed by said defendant, Beverly Gr. Lee, to secure a note executed .by said Beverly Gr. Lee, and payable to the order of plaintiff, which was and is a different no.te from the .one sued on a.nd filed with the petition, and which has long.since been paid off; wherefore, the right of plaintiff to foreclose :said mortgage, etc., is denied.
This defen.ee was .put in issu.e.by.a replication.
On the 4th day of August, 1S73, a trial was commenced before the court.
The plaintiff, to maintain the issues, on his part, read in evidence the mortgage named in his petition without .objection. This mortgage was dated the 20th day of May, 1864, and described the note for six hundred dollars, recited in the mortgage as being one of the notes secured thereby as follows: “.that whereas, the said Beverly .Gr. Lee is justly indebted to the said Robert Aull in the sum of six hundred dollars, evidenced by a promissory note for that sum, executed by said Beverly Gr. Lee, and payable to the order of said Robert Aull, d.ated the 12th day of December, 1860, and in the further sum.of five hundred .dollars, etc.” It was conceded that the five hundred dollar note had been paid. The plaintiff theu offered to rea.d the note sued on an.d filed with his petition in evidence, which said note is,as follows:
“ $600. Lexington, Mo., December 12th, 1860. Four nmnths after date we .promise to pay to the ord.er of Wm. Allen six hundred dollars, with interest after maturity at the rate of ten per cent, per annum, fo.r value received, negotiable and payable at the banking house of Robert Aull, Lexington, Missouri, without defalcation or discount. Beverly G. Lee,
No. 1718. [Signed.] James Hale,
Wm. Allen.”
The note was indorsed as follows : “'Pay Robert Aull, or order. Wm. Allen.”
The defendant objected to the reading of said note in evidence, as the note secured by said mortgage, because there was a variance between the note sued on and offered in evidence, and the note for six hundred dollars, as described in the mortgage, and because said note offered in evidence contradicted the mortgage as read in evidence, and also because there were no allegations of fraud or mistake in the execution of the mortgage, wherefore the parol evidence was not admissible to explain the mortgage, or to identify the note intended to be secured by the mortgage..
The court sustained the objection made by defendant to the evidence, and excluded the oral evidence given to prove the identity of the note, and also, excluded said note as evidence under the mortgage, and would -not permit it to be read as the note secured by the mortgage, but offered to permit plaintiff to read the note as evidence of indebtedness by the defendant, but not as the note secured by the mortgage.
The plaintiff excepted to the opinions of the court in excluding his evidence, and took a non-suit with leave to move to set the same aside, which motion was afterwards made and overruled by the court, and final judgment rendered against the plaintiff, when the plaintiff again excepted, and lias appealed to thi's court.
The only question presented by the record in this case for the consideration of this court, is whether the circuit court erred in excluding the oral evidence offered by plaintiff, to prove that the note sued on, and offered in evidence, was the same note referred to, 'and intended to be secured by the mortgage, and whether Jhe court properly excluded the note as evidencé, in order to foreclose the mortgage? The ground of objection, it will be seen, was not that there was a variance
The mortgage described the note secured as a note for six hundred dollars, dated December 12th, 1S60, payable to the order of Eobert Aull. The legal effect of the note sued on after its endorsement to plaintiff, was that of a note payable to the order of plaintiff, and it was therefore sufficiently described in the mortgage. It is not required that a mortgage shall set forth a literal copy of the instrument secured thereby. It is sufficient to describe it according to its legal effect. (Muldrow vs. Caldwell, 7 Mo., 563; Heywood vs. Wingate, 14 N. H., 73; Byles on Bills, 6th Am. Ed., p. 16, and note; Pitcher vs. Barrows et al. 17 Pick., 361.) The debt to be secured by a mortgage, need not be specifically described. If it is stated in the.condition to the mortgage “ that the grantor was indebted to the grantee for moneys loaned, aud his liability on divers bills of exchange and promissory notes, and it provided, that if lie discharged them within six mouths, the deed should be void, it was.held to be a sufficient description of the debt, since it was capable of being made certain by parol evidence.” The material question is whether there 'is a debt still existing, which the njortgage was executed to secure. In the present case one of the issues made by the pleadings, was whether the note sued on was the note secured by the mortgage. The defendants bad averred in their anwers that it was not, but that the mortgage had been given to secure a different note, for tlie sum of six hundred dollars.