Heffernan v. Weir, 99 Mo. App. 301

Heffernan v. Weir

99 Mo. App. 301 | Mo. Ct. App. | 1903

RETBURN, J.

Prom the meager record, this appears to be an action to charge defendant upon a contract of assumption of the balance unpaid on a bond executed by John R. Marsh, originally secured by a deed of trust upon realty in Creene county, under the provisions of which enforcing the right of sale, the mortgage indebtedness has been partially paid. The appellant, in lieu of a perfect transcript of the record and proceedings in the 'cause, has presented a certified copy of the record entry of the judgment appealed from, and the other proceedings constituting the abbreviated record authorized by section 813 of the Revised Stat*303utes. The appellant’s statement in print filed in this court fails to comply with the rules, especially rule 15, in many respects. The pleadings, neither abstracted nor at length, are contained therein, and the testimony as abstracted is evidently only part of the proof, documentary and oral, offered at the hearing. In the absence of the circuit judge of Greene county, the case was tried before a member of the Springfield bar selected, and at the close of the hearing the court rejected the declarations of law prayed by plaintiff and gave several at defendant’s request, including a declaration that upon the pleadings and the evidence in the case the plaintiff was not entitled, to recover. Prom the foregoing outline it is -manifest that the record is in such a condition that it is impossible for us to fully review the case. As the proceeding is denominated and treated by appellant as a suit in equity, it is not material nor necessary to inquire whether the declarations of law declared or refused by the trial court were erroneous, for the court’s decree is not dependent upon the correctness of such declarations, and may in itself be correct, although error may exist in such declarations. Hall v. Harris, 145 Mo. 614. We are further precluded from reviewing the case by reason of the fact that unless it affirmatively appears by the record that all the evidence offered in the trial court has been preserved, the well-established rule of practice of the appellate courts in an equitable proceeding to decline to .review the cause, must be applied. Barnes v. Buzzard, 61 Mo. App. 346; Roberts v. Bartlett, 26 Mo. App. 611.

2. From the printed abstract of the testimony filed by appellant it appears that a general warranty deed in January, 1899, was executed and delivered by Marsh and wife to respondent for a recited consideration of $700, conveying the property (which had been conveyed by the prior deed of trust) to respondent, with-full covenants of warranty,' and without any express as*304sumption by the grantee of the mortgage indebtedness. "While it is unnecessary that the contract of a grantee to assume payment of an existing incumbrance as part of the consideration for which a conveyance of realty is made should be in writing, and a verbal promise of such assumption is valid and enforcible in equity, yet the promise to pay must be established by clear and cogent evidence and. can not be implied by inference. 2 Devlin on Deeds, sec. 1073; Ordway v. Downey, 18 Wash. 412; Bensieck v. Cook, 110 Mo. 173.

The burden -of establishing such contract was on appellant, and the record discloses that he has failed to establish such oral agreement. Judge Goode is of the opinion that the action was at law, but that the rulings of the trial court were correct.

Judgment affirmed.

Bland, P. J., concurs, and Goode, J., concurs in the result.