Henry v. Orear

104 Mo. App. 570 | Mo. Ct. App. | 1904

ELLISON, J.

Plaintiff gave a mortgage to the New England Loan and Trust Company on 620 acres of land in- Sullivan county to secure a note of $7,400. The note was assigned to defendant. Plaintiff claimed that he had paid the note in full amounting with interest to the sum of $7,844, together with twenty-five cents recorder’s fee for releasing the mortgage on the margin of the record where it was recorded ; and that he had demanded its release which defendant for more than thirty days had refused. Plaintiff thereupon brought this suit for ten per cent on the amount of the mortgage as a penalty for failing to release. R. S. 1899, secs. 4358, 4363. He obtained a verdict in the trial court which on motion of defendant was set aside on account of the court concluding that error was committed in refusing the following instruction: “If the jury believe from the evidence that Orear advanced $60 of his own money to make up1 the total amount of the draft of $7,844 sent to the Trust Company, and that the $60 has never beeu paid by Plenry to Orear, then the verdict of the jury must be for the defendant. ’ ’

Plaintiff appealed to this court.

It appears that defendant obtained the loan for which the mortgage in controversy was given from the New England Loan & Trust Company of Kansas City, Missouri. That defendant was what the evidence designated as a “loan agent” and that he lived in Milan, Missouri, where the loan was negotiated and the mortgage recorded. The note and mortgage appear to have /been assigned to parties in New York and were held by them when the money was paid which it is claimed discharged the loan. The evidence shows that payment was made to defendant substantially in the following way: Plaintiff sold 140 acres of the mortgaged land to one Reger for a sum which the parties do not agree upon, but it was near $2,700. That Reger, to pay for it, borrowed of the New England Loan and Trust Company $2,400 through defendant. That that sum was turned over to defendant by plaintiff for payment on the latter’s note and at the same time plaintiff gave him his check for $5,444, making a. total of $7,840, which he claims to be in full of his note with interest.

Defendant’s claim is that there was due him as commission for the Reger loan the sum of $60-. How that was treated by defendant is not clear.. The theory evidenced by the refused instruction, above set out, is that defendant advanced that much money for plaintiff when he remitted the $7,840 to New York. It may be that plaintiff paid to defendant the proceeds of the Reger sale and just enough more to make the total of what was due on his note and that defendant knowing that $60 was due him and that he did not keep it out of the moneys paid to him, sending it all to the holders of plaintiff’s note, considered that he advanced that sum for plaintiff.

1. But be that as it may, it is undoubtedly the law that notwithstanding a mortgagor may owe a mortgagee, yet unless the debt is a part of the mortgage debt, its non-payment by the mortgagor will not excuse the mortgagee from releasing the mortgage upon payment of the mortgage debt. But, assuming that plaintiff could have made a valid agreement with defendant that if the latter would advance $60 for him to the mortgagee, he could hold the mortgage as a lien for that amount, yet there is no pretense of such, agreement. There is not a particle of evidence to that effect. Having no foundation in evidence, there was nothing upon which defendant could place or fix a right to hold on to the mortgage until the $60 was paid. If plaintiff owes him that sum he is liable to him for it apart from any relation to the mortgage.

2. Furthermore, if there was any such agreement, or any of that nature, whereby the debt of Eeger, as commission for his loan, was to become the debt of plaintiff to he paid to defendant and for which defendant was, by some mode, to become entitled to hold the mortgage for it, it certainly was a defense of such affirmative new matter that it should have been specially pleaded as contended by the plaintiff. The answer here being merely a general denial, defendant had no right to make it, or to ask an instruction upon it. In the case of Wiener v. Peacock, 31 Mo. App. 1. c. 246, Judge Eombaueb said: “We deem it unnecessary to express an opinion on defendant’s fourth point, since his answer is a mere general denial, and matters of excuse .or justification of refusal to enter satisfaction, it would seem should he especially pleaded.” 2 Jones on Mort. (3 Ed.), sec. 991; Northrup v. Ins. Co., 47 Mo. 435; Musser v. Adler, 86 Mo. 445; Mize v. Glenn, 38 Mo. App. 98; Brooks v. Blackwell, 76 Mo. 309.

The instruction aforesaid was therefore properly refused by the trial court and its refusal was not good ground upon which to sustain the motion for new trial.

3. Defendant finds additional ground for sustaining the motion in that he was merely assignee of the note and mortgage for collection and that not being in fact, the beneficiary, he is not liable to the penalty imposed by the statute. We think he is. The statute , expressly names and includes the assignee within its terms. By the assignment he became the legal owner of the note and was the proper party to release the mortgage. It has been so decided by the Supreme Court. Ewings v. Shelton, 34 Mo. 518; Joerdens v. Schrimpf, 77 Mo. 383.

4. Defendant further claims that as the case showed that upon the payment of $2,400 arising from a sale to Reger of 140 acres of the original 620 acres mortgaged, he immediately released the 140 acres, the amount of the mortgage or deed of trust money was reduced by that sum and plaintiff is therefore only entitled to the ten per cent forfeiture -on the amount of the mortgage after deducting that sum. We do not think so. The forfeiture of “ten per cent upon that amount of the mortgage or deed of trust money, absolutely, ’ ’ as declared by the statute, means ten per cent of the mortgage money without regard to or reduction by partial payments, or releases of portions of the land. The greater part of a mortgage debt might be paid and the mortgagee might, in consequence, release only a small part of the land. The statute does not recognize any variation from its absolute demand that the whole'of the land shall be relieved of the lien else a forfeiture of ten per cent of the entire mortgage sum will occur. The object of the statute was to "enforce the duty of the mortgagee to dear the title of the mortgagor, so that it became apparent on examination that the incumbrance of record no longer existed. Fink v. Bruihl, 47 Mo. 173. An illustration of the absolute nature of the forfeiture may be seen in Collar v. Harrison, 28 Mich. 518, where the prescribed penalty of $100 was recovered though the mortgage had been reduced below that sum. And where the penalty was exacted for failing to release within the proper time, though it was entered before suit brought. Deeter v. Crossly, 26 Iowa 180. And for. failing to make the release upon request in a case where the mortgage had been duly discharged by the judgment of a court. Fink v. Bruihl, supra.

5. The further claim of defendant is that the mortgage and note were executed by plaintiff and his wife. That the wife was a principal in the mortgage and had not merely joined in its execution to free.her dower. That therefore plaintiff was not entitled to the whole penalty, but that she as a mortgagor was entitled to her portion of it and that she had not been joined in the . action as a party plaintiff. It was so held in an action on a statute of this kind in Harris v. Swanson, 62 Ala. 299. But the point can not avail defendant since it was not made in the trial court. There was no plea of misjoinder. The answer, as already stated, was merely a general denial. The question whether the plaintiff paid to defendant the recorder’s release fee was determined by the jury.

The order granting new trial will be reversed and cause remanded that judgment may be entered on the verdict.

All concur.