163 Mo. App. 602 | Mo. Ct. App. | 1912
On April 3, 1911, plaintiffs commenced this suit in the circuit court of Howard county to foreclose two deeds of trust executed hy defend
No declarations of law were asked or given. The court incorporated findings of fact in the judgment rendered from which it appears that all the issues of fact raised in the answer and contested in the evidence were decided against the defendants. In other words the court found that the disputed payments alleged in the answer in fact were not made.
But it is very clear to us that this is not an action in equity but is one to foreclose deeds of trust in the nature of mortgages under the statute. [Section 2829, Revised Statutes 1909.] There are no equivocal titles or equities or privities to be settled. The only controversy is the amount of the indebtedness due from Doyle to one of the plaintiffs. As is well said by the Supreme Court in State ex rel. v. Evans, 176 Mo. l. c. 316:
“The parties are the mortgagee on the one side and the mortgagor and the man in possession on the other; the one holding the legal title with a defeasance, the other holding the equity of redemption and the possession; the only duties of the court are to ascertain the amount due on the mortgage debt and pass judgment that the property be sold for the amount so ascertained and that execution issue for the balance, if any, against the mortgagor’s other property. When that is all there is of substance in a case it is a suit at law, even though the petition denominate it a suit in equity and states the case in language more appropriate to bills in equity. [Riley v. McCord, 24 Mo. 265.]”
As this is an action at law and defendants asked no declarations of law the findings of the court are
Defendants admitted the execution of the notes and pleaded certain payments for which the petition did not give credit. That is an affirmative defense and the burden is on the defendants to establish by proof the right to such credits. There is some evidence tending to support their defense but it is opposed by substantial evidence. Indeed counsel for defendants in their brief and argument appear to rest their case on the proposition, not that the judgment is without substantial evidentiary support, but that it is opposed to the weight of the evidence.
We shall not go into the mazes of the evidence. The transactions in question cover a period of almost thirty years and are most complicated and perplexing. They are intricately and confusingly interwoven with * other financial transactions between the parties. Josephine Harrison had a lawyer represent her in all of these matters and he died before the institution of this suit, leaving his accounts in such confusion that nobody could understand them. His death disqualified Doyle as a witness. One of the most important pieces of documentary, evidence had been mislaid by Doyle and while lost had been half destroyed by rats or mice. Both sides malee large claims of what they could prove by the destroyed half. Another instrument contains figures made in pencil years ago and the figures are so dim they cannot be read. As presented by the record the evidence is so vague, so filled with cryptic figures and so interspersed with lacunae (always at the most important places) that no one could trace the theory of either contestant along an unbroken evidentiary line. Of course counsel for the respective parties have given us clear and plausible analyses of