172 Mo. App. 537 | Mo. Ct. App. | 1913
On January 6, 1911, the defendants L. M. White, C. H. White, and K. P. Jones executed and delivered to the Commerce Trust Company their joint promissory note for $3300 due six months after date and bearing eight' per cent compound interest per annum from date until paid. This note was secured by a chattel mortgage executed by L. M. White on a livery stock, and the chattel mortgage was duly recorded.
Thereafter, the defendant, J. F. Burkhardt (who is the only one who appeals) acquired the livery stock subject to the chattel mortgage.
The note became due and, as it was not paid, suit was brought against the makers of the note and J. F. Burkhardt. The petition is in two counts, the first being a plain suit on the note against the signers there
The signers of the note filed no answer and made no defense. But defendant Burkhardt answered in which he denied generally every allegation in the petition contained and then set up that the chattel mortgage was void because L. M. White had no interest in the livery stock at the time the chattel mortgage was executed and could convey no interest therein. He further set up that an agreement had been entered into between plaintiff and himself -whereby plaintiff was to accept from Burkhardt certain real estate in Nebraska as security for the above indebtedness in the place of said livery stock, and the latter was -to be thereupon released; that the security of the Nebraska real estate was to be given by defendant Burkhardt executing to plaintiff a warranty deed to said real estate and receiving back a contract agreeing to reconvey said real estate to defendant upon payment of the amount of said indebtedness within six months thereafter; that said deed was executed and delivered to plaintiff’s president, William T. Kemper, for and on behalf of
To this answer, the plaintiff filed reply denying generally everything in the answer not specifically admitted, and then setting up that L. M. White, at the time of executing the chattel mortgage, had a right to execute the same; that Burkhardt, at the time he acquired the livery stock, knew of said chattel mortgage, took said stock subject thereto, and by promises to pay the indebtedness secured thereby has induced plaintiff to postpone foreclosure thereof, and is es-topped to deny the validity of the same. • It was further alleged in the reply that plaintiff never agreed to release the livery stock and accept the Nebraska real estate as security in lieu thereof. But that it was expressly stated to Burkhardt that plaintiff would do so only on condition that the makers of the note would consent thereto, and upon the further condition that the Nebraska property 'should, on examination, be found to be of the character and in the condition he had represented it to be; and that said property, on investigation, proved not to be as represented in a number of particulars, not only as to character, worth and condition, but also as to title, and that Burkhardt was fully informed of this; that afterwards Burkhardt, through fraud and deceit, induced an employee of plaintiff, who was not conversant with the negotiations concerning the conditions on which the exchange of securities was to be made, to record the deed signed by Burkhardt and left with the employee and which pur
On October 17, 1911, the court appointed John T, Wayland receiver who qualified and took possession of the livery property, and Burkhardt was restrained, from selling or disposing of it.
Upon the trial of the case, defendant Burkhardt. demanded a jury, and the court, although deeming it an equity case, concluded to grant the request and take the advice of a jury upon the issues of fact involved.
As stated before, the makers of the note made no-defense. There was, therefore, no issue raised over-the cause of action stated in the'first count of the petition, to-wit, the suit on the note. The answer filed by Burkhardt was in reality as answer merely to the-second count and ignored the first count. But even if Burkhardt’s answer can be stretched to cover this, first count because it contains the words ‘ ‘ deny 'each- and every allegation in said petition contained” still this would not be sufficient to raise a triable issue over the note if the pleadings subsequent to the petition showed on their face that Burkhardt was in no position to deny the validity of the note, and this they did. But, even if they did not, the determination of the issues raised by the second count and the pleadings filed to it would inevitably determine the issue of the-validity of the note as to Burkhardt. So that, as hereinbefore stated, there was no reason or necessity for litigating any question raised by the first count. The whole dispute, so far as Burkhardt (or any one else-for that matter) was concerned, centered around the issues raised by the second count, namely, the validity of the mortgage and whether or not the livery stock had been released. Hence the court did not err in not.
It is contended by the defendant Burkhardt that the entire suit is one at law, the first count being a mere suit on a note, and the second to foreclose a mortgage securing it, and that defendant, having demanded a jury, was entitled to have one and to have it pass on all the issues involved, the note as well as the foreclosure matter. But, while the count on the note was a suit at law, there was no issue raised as to it. And defendant is mistaken in thinking that the second count is one at law. It and the pleadings filed to it made the second count one in equity. If the allegations of the second count did not make it one in equity certainly the allegations of the answer and of the reply thereto did. However, it is unnecessary to dwell further on this point since this court has already held that the second count was one in equity. [Commerce Trust Co. v. White et al., 154 S. W. 864.]
Complaint is next made that the issues submitted to the jury were not broad enough to cover the issues raised by the pleadings under the second count. Broadly speaking there were but two issues: first, was the chattel mortgage valid, second, was the livery stock subject to or released from the lien thereof? These two issues were submitted. If defendant wished the jury told just what facts they were required to find in order to decide said issues either way, he should have submitted instructions to be given the jury, but he did not do so. The two issues submitted for the determination of the jury were all of the issues involved, but did not contain a statement of the facts necessary to be found in order to properly decide those issues. It is the province of instructions to tell the
Upon the question of whether the chattel mortgage was valid as to Burkhardt, the undisputed evidence was such as to estop Burkhardt from denying its validity. In fact, by insisting that the Nebraska property had been substituted for the livery stock as security for the chattel mortgage in order that the livery stock might be released, Burkhardt admitted the validity of the chattel mortgage but was claiming that the property therein had been released. So that, on that issue, there was no question of fact to be passed on by the jury, and the court very properly directed the jury to return a verdict for plaintiff on that issue.
Upon the question whether the Nebraska land had been by agreement substituted for the livery stock thereby entitling the livery stock to be released, the evidence was all one way. In the first place, the livery stock, so far as the records and documentary evidence showed, was not released. Prima facie therefore, the livery stock was still subject to the chattel mortgage. The burden was on defendant. Burkhardt to show that in equity it was free from the mortgage. All the evidence, however, was to the effect that the proposed substitution of the Nebraska land for and in lieu of the livery stock as security was never in fact consummated; that it was not to be done unless the makers of the note consented to it, and unless the property was in every way as represented, and that none of these conditions were performed; that instruments were drawn up by which the Nebraska property was deeded by Burkhardt to Kemper for plain
But defendant contends that inasmuch as plaintiff’s evidence shows that the two instruments concerning the Nebraska land were left in escrow with Kemper’s agent this constituted a complete delivery and taking effect of the deed regardless of what may have been the intention of the parties. This is on the theory that a deed, when delivered to the grantee, ceases to operate as an escrow and becomes an operative deed free from any condition of the escrow not expressed in the deed itself. [1 Devlin on Deeds (3 Ed.), sec. 314.] But even if this is true, and ordinarily it is (but. not in this case), the deed in such
Besides, it must be remembered that the rule in reference to the delivery of a deed in escrow to the grantee or his agent is a rule at law, and not one in equity. As said by Justice Story in Flagg v. Mann, 2 Sum. 510, “Though there is a technical difficulty in the suggestion of the delivery of the deed to the grantee as an escrow, yet a court of equity will not govern itself exclusively by technical principles of law where the intention of the parties will be thereby defeated.” Again, the rule in reference to a deed delivered as an escrow to the grantee is not applicable-to this case, because the deed was in reality to the-plaintiff, though made to Kemper for it. There is not such a personal identity between a corporation and its officers, that a deed may not be placed in the hands of the latter, as an escrow until the performance of the condition upon which it is to be delivered and become operative. [Southern Life Ins. Co. v. Cole, 4-Fla. 359, 1. c. 274; 1 Devlin on Deeds (3 Ed.), sec. 316, p. 558.]