133 Mo. App. 570 | Mo. Ct. App. | 1908
This is a suit to foreclose a mortgage on real estate. Defendants prevailed in the trial court where the cause was tried without a jury. Plaim tiff appealed.
On October 6, 1887, defendant Charles C. Bell borrowed $502.75 from his brother, the plaintiff, and. delivered to his brother his negotiable promissory note for that sum, payable July 1,1888, and bearing ten per cent interest per annum from date. On November 1, 1887, said defendant borrowed $1,305.77 from plaintiff, and gave his note due July 1, 1889, for that amount, with interest at ten per cent per annum from date. December 13th of the same year, defendant Charles C. Bell and his wife, Mary E. Bell, joined in the execution of a mortgage on land owned by the wife in Cedar county, Missouri. The instrument contains the recital:
“This grant is intended as a mortgage to secure the payment of one thousand eight hundred eight and 54-100 dollars, according to the terms of two certain promissory notes executed by the said C. C. Bell to the party of the second part, Jas. S. Bell, date Oct. 6, 1887,*572 due July 1, 1888, amount $502.75; second note dated Nov. 1, 1887, due July 1, 1889.”
The mortgage was delivered to plaintiff and was recorded in the office of the recorder of deeds of Cedar county, June 11, 1889. No payment of either principal or interest was made on the first described note. Two payments were made and endorsed on the larger note, one of $500, on July 14, 1890, and one of $62.50, on November 3, 1892. This suit was brought in the circuit court of Cedar county the 26th day of January, 1907, after both notes were barred by the Statute of Limitations. One of the defenses interposed by the answering-defendants thus is pleaded: “That if' said mortgage was executed, same was without consideration having been received by said Mary R. Bell, or anyone to her use or having been given by the plaintiff or anyone for him to induce the execution of said mortgage and that if executed at all, said deed of trust was executed by both makers without any consideration whatever.”
The recitals in the mortgage and the testimony of plaintiff show indisputably that the mortgage was given by Mrs. Bell on her land to secure a pre-existing- debt of her husband, and without any new consideration of any kind to her or her husband. The loans were made by plaintiff to her husband without a demand by the former or a promise by the latter that such security or any security Avould be given. Plaintiff parted with his money and accepted his debtor’s promissory notes for it, then a month or more after the transaction had been closed and before the maturity of either note, demanded security aud received the mortgage in suit in compliance with the demand.
The rule is Avell settled that “a married woman, when conforming to the requirements of the statute, has the unquestioned power to make a valid mortgage upon, her real estate which is not held to her separate use, though the debt or liability secured thereby is that
The judgment is affirmed.
