56 Mo. App. 382 | Mo. Ct. App. | 1894
— This action is one to foreclose a mortgage in the form of a trust deed, executed by the ■defendant and conveying to plaintiff Holme certain real estate in the city of Hannibal as security for the prompt payment of-a note of $1,000, also executed by the defendant and payable to plaintiff Brown. The peti
The answer admits the execution of the deed and note, but claims that the latter has been fully paid, and hence, that the plaintiffs are not entitled to any decree. The answer relies upon the following facts as evidencing the payment of the note. The note was given in part payment of the purchase money for the land by the defendant to Brown. Brown’s deed to the defendant contained the statutory covenants implied in the use of the term grant, bargain and sell, and also contained a special covenant of general warranty and against incumbrances suffered by Brown, or those claiming under him. At the date of the execution and delivery of the deed by Brown t<¡> the defendant, there was a subsisting incumbrance on the land conveyed, to the amount of $2,600, by deed of trust executed by Brown’s grantor to the Hannibal Mutual Loan and Building Association’s trustee, which incumbrance was payable in installments. Brown failed to pay these installments as they became due, and. the defendant, for her own protection, and to prevent the accumulation of penalties accruing thereunder, was compelled to discharge, and did discharge, this incumbrance, and in so doing expended a greater amount than the balance alleged by the plaintiffs as remaining unpaid on the $1,000 note. The defendant claims that, by so doing, she paid the balance of the note and prays judgment.
The plaintiffs’ reply admits that the incumbrance mentioned in the answer existed at the date of the conveyance of’ the land by plaintiff Brown to the defendant. ' It avers, however, that the defendant was aware of the existence of such incumbrance, and in
The cause was tried by the court upon the issues thus made, and the trial resulted in a decree for the plaintiffs in accordance with the prayer of their petition. The defendant appeals, and complains that the trial court erred in the following particulars: First. In holding that under the pleadings the plaintiffs had discharged the burden of proof, which rested with them, by giving in evidence the note and deed of trust executed by the defendant. Second. In permitting the introduction of parol evidence, contradicting the covenants contained in the deed of plaintiff Brown to the defendant. Third. In admitting irrelevant evidence. Fourth. In permitting evidence in rebuttal to be given by the plaintiffs. Fifth. In finding upon the whole evidence for the plaintiffs, instead of finding for the defendants. These complaints we will proceed to examine in detail.
The first assignment is untenable. The plaintiff sued upon a note, which upon its face disclosed the amount due, and upon a deed admittedly executed by the defendant and providing for a foreclosure, if the debt was not paid. The defendant pleaded payment of the debt, setting out the facts which she claimed established the ultimate fact of payment. The plaintiffs denied these facts in part. Their reply confesses their truth in part only. When, therefore, the plaintiffs had- given
The second assignment of error raises a very close proposition. On the one hand, it is well settled that, where parties have put their contract in writing purporting to cover the entire contract, it is presumed that the whole engagement, and the extent and manner of the undertaking, was reduced to writing, and in absence of evidence of accident, fraud or mistake, this presumption is conclusive. MacLeod v. Skiles, 81 Mo. 595; State ex rel. Yeoman v. Hoshaw, 98 Mo. 358; Morgan v. Porter, 103 Mo. 135. On the other hand, it is equally well settled that the recital of a consideration in the deed, except in so far as it affects its operative force, is not conclusive, but the parties may show other and additional considerations, or a lesser consideration than the one recited in the deed. The recited consideration is, as was said by Judge Cowan in M'Crea v. Purmont (16 Wend. 465), only prima facie evidence of amount, or, as was said by Judge Wagner in Fontaine v. Boatmen's Savings Institution (57 Mo. 561), the consideration clause in a deed has only the force and character of a receipt, and is always open to explanation and contradiction. See, also, McConnell v. Brayner, 63 Mo. 464; Hollocher v. Hollocher, 62 Mo. 273.
The question arising in this case under the' propositions above stated is this: Can the grantor in a deed, in disproving the prima facie truth of the consideration clause, go to the extent of showing that
In the case at bar the deed of plaintiff Brown •contains a covenant against incumbrances, and a covenant of general warranty. The attempt, to show by parol that the payment of the incumbrance, which existed at the date of the conveyance, was assumed by the grantee as part of the consideration is an attempt to show that said covenant is meaningless, and is, therefore, in direct contradiction of the covenant.' Wé must hold that the oral evidence to show this was 'improperly admitted. We have all the less hesitation in coming to this conclusion, since the evidence thus .admitted was vague and unsatisfactory.
There is nothing in our Code which would preclude
With the concurrence of all the judges, the judgment is reversed.