143 Mo. 469 | Mo. | 1898
This is a bill in equity by plaintiffs to postpone the lien of a certain deed of trust executed by defendant Charles Harlan to Daniel M. Tucker, trustee for Wm. B. Tucker, January 26, 1893, to secure a note for $4,000.
The several plaintiffs, J. W. Hord, Joseph A. Dealing, H. T. Greenway, E. M. Bryan, A. M. Taylor, John W. Gordon and George C. Ramsey each obtained a several judgment in his own behalf against defendant Harlan in the circuit court of Callaway county during the summer and fall of 1894, the total amount of such judgment aggregating $2,461.35. The various debts upon which these judgments are based were incurred by the said plaintiffs becoming sureties for Harlan in bank at Jefferson City and Pulton. The farm known as the “home place” of defendant Harlan consisted of two hundred and forty-three and seventy-five hundredths acres of land, about twenty-five miles from Pulton, the county seat, in the south part of Callaway county on the Missouri river. It was estimated by the various witnesses to be worth between $7,000 and $8,000. It sold for $5,050 at the trustee’s sale under the Tucker deed of trust to A. M. Taylor, one of the plaintiffs. On March 24, 1879, W. B. Tucker loaned 0. H. Harlan $2,000 at eight per cent compound interest and took a deed of trust on the “home place.” This deed of trust was not recorded until November 21, 1892. On the sixteenth of January, 1893, the note for $2,000 amounted to $5,800. Tucker on that day remitted $1,800 and took a new note from Harlan for $4,000 and a new deed of trust on the same land to secure the new note. The plaintiffs’ judgments represent the balances due on the several notes of Harlan on which they were his sureties. He had owned an island and had given a deed of trust thereon to secure
The circuit court after hearing all the evidence dismissed plaintiffs’ bill and gave judgment for defend- ■ ants. Plaintiffs appeal.
Plaintiffs predicate their claim to postpone defendant Tucker’s deed of trust to their judgments upon the decisions of this court in Bank v. Doran, 109 Mo. 40, and Bank v. Buck, 123 Mo. 141. In those cases it was ruled that an agreement by a mortgagee to withhold his mortgage from record whereby others are induced to give credit to the mortgagor is a fraud upon subsequent creditors, and will postpone the 'mortgagee to such subsequent creditors, but it was expressly ruled in Bank v. Buck, 123 Mo. 141, that “a person incurs no penalty for a mere failure
In Bank v. Doran, 109 Mo. 47, the chancellor found “that at the time said deeds of trust were executed it was expressly agreed by the said Bartle that the same should be withdrawn from the record and the existence thereof concealed.” Upon that finding, to which this court deferred, the deed was held fraudulent. Bank v. Frame, 112 Mo. 502, follows Bank v. Doran. This question was again before us in Bank v. Rohrer, 138 Mo. 369, and the cases reviewed and it was again held that the mere withholding of a deed from record was not evidence of fraud. In that ca.se it is said: “It has always been held in- this State ‘that the title of a bona fide purchaser or mortgagee under a deed or mortgage not recorded, is good against creditors at large, and is also good against sales under judgments and executions, if the deed or mortgage' is duly recorded before such sales.; ” Sappington v. Oeschli, 49 Mo. 244; Davis v. Ownsby, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Bank v. Buck, 123 Mo. 141.
In this case there was no agreement to withhold the deed of trust from record. There is not a scintilla of evidence that impeaches the consideration of Har