135 Mo. 597 | Mo. | 1896
This suit is to foreclose a deed of trust made by defendant, Rachel B. Fleming to Richard Stumpf as trustee, conveying certain lots in the city of St. Joseph to secure a note for $4,000, payable to plaintiff, dated December 3, 1883*, due January 1, 1887, and bearing interest from date at ten per cent per annum. The petition charged these facts and also that the note was due, and, excepting certain admitted credits, was unpaid, and that the trustee refused to act.
The petition charged in addition, a prior deed of trust on the same lots to secure an indebtedness of $1,300;
The administrator of Rachel Fleming, her heirs, and the holders of the prior and subsequent liens on the land, were made defendants in the suit.
The petition prayed that an account be taken of the amounts due on the debts mentioned; that the interests and rights of the parties and priorities of said liens be ascertained and determined; that judgment be given foreclosing all the equities of redemption; that the land be sold and the proceeds thereof be applied to the payment of plaintiff’s note, and, if any part thereof remained, that it be distributed as right and justice should require.
Defendant Rachel B. Fleming and the other heirs of Rachel Fleming deceased, denied under oath the execution of the note sued upon, and charged that there was no consideration therefor.
Defendants, by timely and proper application, demanded a jury trial of the issues, which was denied them by the court, and they duly excepted.
The evidence shows that, prior to the date of the note and deed of trust, the land belonged to one Carder; that'Carder agreed to sell it to Mrs. Rachel Fleming and take, in part consideration therefor, some other real property, the balance in'money, and in the
James Brim, the father of plaintiff, had the money which he was willing to lend, and for security, to take a deed of trust on the lots. But he had a judgment for alimony in favor of a divorced wife standing against him which he desired to avoid paying.
In these circumstances it was concluded that Carder should convey the land to defendant Rachel B., an unmarried daughter of Mrs. Fleming, who should make the note and deed of trust to plaintiff, the son of the said James Brim, and should then convey the land to Mrs. Fleming.
On the third day of December, 1883, Mrs. Fleming and plaintiff went to the office of a lawyer' and notary public, and had a note for $4,000 prepared, which was made payable to plaintiff on or before January 1, 1887, with interest from date at-per cent per annum. A deed of trust was also prepared in the usual form, describing' the note but leaving also a blank for the rate of interest. These papers were signed by. Rachel B. Fleming and the deed of trust was acknowledged. A quitclaim deed was also prepared,' signed, and acknowledged by the said Rachel B., conveying to her mother the property in question. The deeds and note were taken away by these parties.
In a day or two after these transactions, James Brim and Carder went to the home of Mrs. Fleming, on which occasion the negotiations were concluded. The money was paid by James Brim to Mrs. Fleming, which she paid to Carder for the land. A deed conveying the land to Rachel B. Fleming was delivered by
The deed of trust was recorded December 10, 1883, and at that time the blank in the description of the note was filled in with the figures 10, thereby making the note bear interest at the rate of ten per cent per annum. The note also had the blank filled with the figures 10, when introduced in evidence on the trial.
James Brim was introduced by the plaintiff as a witness. He testified that the note and deed of trust were handed to him by Mrs. Fleming' in the presence of Rachel B. Fleming. He examined them and found that no rate of interest was specified in either. He called Mrs. Fleming’s attention to the fact and she went to another room and got a pen and ink and one of the three inserted the figures 10 in the blanks. After that had been done he paid Mrs. Fleming the money and she delivered him the note and deed of trust. Witness thought the figures 10 were in his handwriting. This evidence was objected to at the time it was offered, and afterward, by motion to strike it out on the ground that Mrs. Fleming being dead James Brim was not a competent witness.
The court after hearing all the ,evidence found as a fact that “the figures ten (10) expressing the rate of interest in the note, and in the description thereof in the deed or trust, were inserted therein in the presence of, and by and with the knowledge and acquiescence of, defendant Rachel B. Fleming before the delivery thereof to plaintiff John L. Brim, and before the payment of the consideration thereof to said Rachel B. Fleming.”
The other facts were found for the plaintiff and judgment was rendered accordingly. Defendants appealed.
But, at the same time, it has been as well settled that courts of equity are not shorn of their jurisdiction to foreclose mortgages by reason of these statutory provisions. Hannah v. Davis, 112 Mo. 608, and cases cited.
Whether the proceeding is at law or in equity must be determined by the circumstances of the par-' ticular case, as they are-disclosed by the pleadings, and the relief to be granted. It is said in the case last cited that “the question must be governed largely by the circumstances and equities of each controversy.” The statute makes no provision except the general direction that the proceedings shall be subject to, and governed by, the law “regulating proceedings in civil cases.” If, therefore, the proceedings for foreclosure are in equity the practice in equity cases must be followed. In such case, a party is not, of right, entitled to a jury trial.,.
Looking to . the petition in this case we find that it charges the execution and delivery of the deed of trust which is sought, to be foreclosed; a prior deed of trust on the same property; a subsequent deed of trust on an undivided interest in the property, and an attachment lien against the interest of one of the present owners of the equity of redemption. All the parties interested in the property and these liens are made parties to the suit. The prayer of the petition is that the rights of the parties and the priorities 'of the liens be ascertained and de-
It would seem there could be no doubt, under these allegations and the prayer of the petition, that the suit is in equity, and the court, therefore, had the right to refuse a jury trial.
II. Objection was made to the competency of James Brim, as a witness, to testify in regard to the time and manner of making the alterations, on the ground that Mrs, Fleming was dead. This question involves the construction of the proviso of the statute which removes the disability of a party to testify in a 'civil action on account of his interest in the event of the same. The statute, after declaring that no person shall be disqualified as a witness in any civil suit or proceeding, by reason of the event of the same, as a party, or otherwise, provides that “in actions where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him.” R. S. 1889, sec. 8918.
Mrs. Fleming was not a party to the contract in issue and on trial, but she was the agent of her daughter in whose name the contract was made. Neither was James Brim a party to the contract, though he was the agent of his son, in whose name the contract was made. The entire transaction, from beginning to end, was conducted by these agents; indeed they were the real parties interested though Mrs. Fleming, being at the time a married woman, was not competent to make the contract in her own name.
Thus we find it has been expressly held that if both parties to a contract be living, one of them will not be competent to testify if the agent who negotiated the contract for the other be dead. Williams v. Edwards, 94 Mo. 447.
This ruling, if literally followed, would exclude James Brim as a witness. But to give that construction to the statute, its spirit rather than its letter has been taken. The primary object of the statute is to remove the common law disability of an interested party to testify. The exception is intended to avoid the-injustice that would arise in admitting the testimony of one party when the other is dead. In case that injustice does not exist in any case, the exception would not apply.
In this ease neither party to the contract was dead, and under a literal reading of the statute James Brim would be a competent witness whether he was acting for himself or as agent for his son. Did such facts exist as would require the application of the equitable construction of the statute in order to avoid injustice1? The court finds that Rachel B. Fleming, the party in whose name the contract was made, was present during the entire negotiation under which the blanks in the note and deed of trust were filled. While the authority to make the alteration was given by her agent,
III. The court found as a fact that filling the blanks in the note and deed of trust, so as 'to make them express the rate of interest the note was intended to bear, was done with the knowledge and consent of the payor and grantor before delivery, and before the consideration therefor had been paid. This finding we think supported by the weight of the evidence. Delivery was an act essential to the perfection of those instruments as binding obligations. Before delivery the payee might have required the execution of a new note before paying the consideration, but instead of doing this, it was competent for the parties to supply the omission in the note, by filling the blank, so as to make it conform to the agreement. Indeed, this might have been done, with the consent of the maker, after delivery, without affecting the validity of the note. The note, as completed, would become the contract of the parties, and the agreement to pay ten per. cent interest would be in writing as required by statute.
It is insisted that the deed of trust could not be altered in the particular shown, even with the consent of the grantor, without a reacknowledgment.
There would be force in this argument if an acknowledgment were necessary to make the deed effect
The alteration complained of here was made before delivery and with the consent of the grantor and the validity of the conveyance was not defeated thereby. Judgment affirmed.