49 Mo. App. 290 | Mo. Ct. App. | 1892
This is an action to cancel an entry of an erroneous lease upon the margin of the record of a deed of trust in the records of deeds of Greene county, and to substitute in- lieu thereof the entry which was in accordance with the intention of the parties. The trial court granted the relief prayed for, and the main contention of the defendants on this appeal is that the decree is not supported by the evidence.
The facts, as stated in plaintiff’s petition, and as shown upon the trial by uncontroverted' evidence, may be briefly stated as follows: The plaintiff held a deed of trust on lots 49 and 54 of the southern addition to Springfield. This deed was executed by the defendants Witt, who were husband and wife, on the twenty-ninth day of January, 1889, and secured an indebtedness of $1,000 due from them to the plaintiff. At that date the defendants Witt, having a chance to sell lot 49, requested the plaintiff to release that lot from the lien of the deed of trust, and the plaintiff consented to do so. Eor the purpose of doing so, the plaintiff called at the recorder’s office, and by a mistake in the entry of release on the margin of the record she released the entire deed of trust. Neither of the parties was aware of this mistake until March, 1890, when the Witts desired to raise some money on lot 54 for the purpose of paying off the indebtedness of $1,000 still due to the plaintiff. They were then informed by an examiner of the title that there was no incumbrance on lot 54, and, learning of that fact, they immediately sold the lot to the defendant Marquis for a consideration of $1,700. No part of this consideration ivas paid in cash, but Marquis executed in payment thereof his three negotiable promissory notes to the Witts, the one first maturing being payable six months after date. Marquis was a young unmarried man without any means whatever,
It is needless to say that, upon these facts, the two defendants Witt have no cause whatever to complain of the decree. As to them the mistake in the release is clearly established, and is in fact admitted by themselves. The plaintiff’s right as against them is beyond any question, and whether or not they sold the property
Nor is there any evidence in the record that the defendant Marquis ever attempted to get his notes back and to cancel the transaction of sale, a matter which he could have accomplished without any difficulty if the professions of fair dealing, which he and the Witts now make, are to be credited.
The judgment is affirmed.