42 Mo. App. 168 | Mo. Ct. App. | 1890
One Inskeep was plaintiff’s debtor in
the sum of $709.83. Plaintiff, hearing that he was becoming embarrassed and that executions were being levied upon his property, went to him, either to have him pay or secure his claim. As the result of their meeting and conference, the following instrument was drawn and signed:
“Kansas City, Mo., November 17, 1886.
“Know all men by these presents : That I, J. B. Inskeep, do, on this day and date, in consideration of the sum of $709.83, sell, transfer and deliver to E. King all my right, title and interest in two hundred and thirty-five acres of wheat now growing on the King and French lands, in Kingsville township, Johnson county, Missouri. J. B. Inskeep.”
The question before the trial court was, was this instrument, considered with the evidence, an absolute bill of sale, or a mortgage ? If a mortgage, it seems to be conceded to be void, as to these defendants who purchased the property, as it was not acknowledged or recorded. The circuit court gave‘a peremptory instruction for defendants at the close of plaintiff5 s case, and he appeals.
We are satisfied the cause was disposed of on a theory inapplicable to the issue in the cause. Whatever doubt there may be as to the character of the transaction has been resolved in favor of the theory of the instrument’s being a mortgage. Such principle of law is applicable when the issue is, whether the instrument is a conditional sale or mortgage. Bender v. Markle, 37 Mo. App. 284, and authorities cited therein. So that, if in such case the evidence leaves it in doubt whether an instrument was intended as a conditional sale or a mortgage, it will be held to be a mortgage.
The case should be tried with reference to the views herein expressed, and will be reversed and remanded for that purpose.