Doniphan v. Paxton
19 Mo. 288
Mo.
1854
Check Treatment
Gamble, Judge,

delivered the opinion of the court.

1. The deed made by John Florish to Bird, Doniphan & Rees, and which is a mortgage, with power to sell, appears to *291be the first incumbrance upon the property sold by the trustee ; and the chief question is, whether that instrument, with a memorandum written at the foot, before it was executed, by which the purpose of the grantor was declared, that the conveyance should stand as security for debts due to Peter Elorish and Anthony Kern, had the effect of making those debts an incumbrance upon the property, as against the subsequent incumbrance of Doniphan & Baldwin.

The language employed in the memorandum attached to the deed, shows the purpose of the grantor to secure the debts of Kern and Peter Elorish. I£ that memorandum was a qualification of the terms of the deed, being written upon it at the request of the grantor before it was executed,- it is to be taken as a part of the instrument. Heywood v. Perrin, 10 Pick. 228. Wheelock v. Freeman, 13 Pick. 165. Wilson v. Headly, 3 Bibb, 11. Nichol's Adm’rs v. Douglass et al., 8 Mo. Rep. 50.

The deed directed that, upon a sale being made, because of the failure to pay the debt to the grantees, Bird, Doniphan & Rees, the money arising from the sale should be first applied to the payment of the expenses, and to the payment of the debt to the grantees, and next, to the payment of other incumbrances, and particularly, three judgments which are specified in the deed, and the balance should be paid to the grantor or his order. The memorandum operates upon this last clause of the deed, and so qualifies it, that the debts mentioned in the memorandum are to be paid out of such surplus. As the conveyance was to Bird, Doniphan & Rees, with power to sell and pay these debts, the grantees became trustees for the benefit of the creditors named in the memorandum, in respect to the surplus, after the payment of the debts previously mentioned in the deed; and thp debts mentioned in the memorandum became liens on the property, taking rank next after the other debts secured by the deed.

2. In respect to the note executed to Peter Elorish, there would seem to be no importance in examining the question, *292whether it was given for a valuable consideration, or as a gratuity, as it does not appear that the note is claimed of the estate of the convict as a debt separate from that secured by the deed of trust. It appears that there was an indebtedness equal to the amount secured by the deed, for the work and labor of Peter Florish, and, whether that is the debt for which the note was given or not, is not material, if only one sum of $400 is claimed. The note is in the German language, and the translation of it makes the consideration to be, “ the interest of Peter Florish in the estate of John Florish.” There may have been some previous settlement or contract, under which Peter claimed an interest in property held by John Florish, at the death of John, and which Peter relinquished when he took this note. It may have been that the parties described the consideration in language not precisely adapted to convey an idea of the fact. It is certain that the maker assumed an absolute obligation to pay, and to pay at a fixed day, and that a consideration is stated in a very unusual form. If, upon any supposition, that language can be understood as importing a valuable consideration moving to the father, the note will be understood as being made upon such consideration. But it is not necessary to pursue this discussion, because, by the deed and the evidence, it appears there was an indebtedness for labor, and that that debt amounted 'to the same sum with the note, and the only debt claimed is of the same amount; therefore, as to that amount, the deed secures Peter Florish.

In respect to the debt to Kern, if the claim is to take priority, according to the memorandum on the deed, it can only be for the sum in that memorandum, and not for a larger sum evidenced by a note. The memorandum states a debt to Kern of $200 — a note is produced for $212. The deed stands only as security for $200, as there is no reference in the memorandum to a note.

The decision of the Circuit Court was correct upon the claim of Peter Florish, and was also correct upon that of Kern, in declaring that the debt due to Kern, as stated in the memoran*293dum, is a lien upon the land. The decision of the court does not state that the debt due by the note is a lien, but that “ the debts in said memorandum are liens.” This decision, when confined to the amounts stated in the memorandum, is correct.

The judgment of the Circuit Court is affirmed,

the other judges concurring.