La Rue v. Bloch

255 S.W. 321 | Mo. Ct. App. | 1923

^* Headnote 1. Appeal Error, 4 C.J., Section 2226; 2. Appeal Error, 4 C.J., Section 2365; 3. Appeal Error, 4 C.J., Section 2665; 4. Appeal Error, 4 C.J., Section 2893; 5. Appeal Error, 3 C.J., Section 642 (1926 Anno); 6. Mortgages, 27 Cyc, p. 1758 (1926 Anno); 7. Mortgages, 27 Cyc, p. 1750. This is a suit to recover judgment for a deficiency of nearly $1000 in the payment of the debt after the foreclosure of a mortgage given to plaintiff by one Firestone on a hotel in Kansas. After giving the mortgage, Firestone conveyed the hotel to the defendant Bloch. This suit is based upon an alleged assumption and agreement on the part of Bloch, in the deed to him, to pay said mortgage.

After denying generally, defendant set up that if the deed contained a clause assuming and agreeing to pay said mortgage, it was fraudulently in said deed without defendant's knowledge or consent, and that, therefore, the deed did not express the real contract between the parties; wherefore defendant prayed to have the pretended assumption clause adjudged void and the deed reformed. The reply was a general denial.

The case was tried as one in equity. The Chancellor found the issues for defendant and rendered judgment that defendant go hence without delay and recover his costs. Plaintiff has appealed.

Appellant asks this court to reverse a judgment rendered against him in an equity case, and yet has not seen fit to bring all the testimony to this court. Respondent, in an additional abstract, has furnished us with a portion of the omitted parts of the bill of exceptions and asks the court to affirm the judgment because of the failure to bring all the testimony before us as required by our rule 14. Were we to apply or enforce the rule, we would have to dismiss the appeal as that is the penalty provided for in Rule 18.

However, the chancellor rendered his judgment, finding for defendant in general terms and there is nothing in the record to show upon what particular ground he did so. There is an assertion in the statement contained in appellant's brief to the effect that the chancellor "based his judgment upon the sole ground that plaintiff had not proven that he was the owner of the note or indebtedness at the time suit was brought." Of course, we can look only to the record to ascertain what the court did and the ground the judgment was based upon. We cannot accept a mere assertion made in appellant's statement concerning the basis of the court's action. There is evidence in the record tending to show that Firestone's agent in attending to the sale and conveyance of the property to defendant fraudulently inserted the assumption clause in the deed, without defendant's knowledge, he being a foreigner and depending on what the agent told him as to the contents of the deed, having refused to agree to assume the mortgage. Hence the court may well have found for defendant upon the evidence in the case. Not having all of the evidence before us, we cannot say the judgment is erroneous. [Boettger v. Boyers, 188 S.W. 1124; Yancey v. Jones, 153 Mo. App. 206.] The burden of showing that the judgment was wrong is upon appellant. Respondent is not required to maintain it. [Gooden v. Modern Woodmen, 194 Mo. App. 666, 676.]

It is true the judgment does not go to the full extent prayed in defendant's answer and reform the deed but it would seem that this is a matter of which he alone need object and he is not complaining. However, no such point is made in appellant's assignment of errors, nor does it appear in the motion for new trial; and there was no motion in arrest, the proper place for errors appearing on the face of the record proper. [Nichols, etc., Co. v. Stokes, 196 S.W. 1075.

There is no such declaration of law lettered A in the record as the one called for in plaintiff's motion for new trial but if we can assume that the declaration in the record is the one referred to, we see no ground for reversal of the case on account of its refusal. It was to the effect that "no evidence is required to prove that plaintiff is the owner of the indebtedness, the law presumes that the payee is the owner and holder of the note." While the cause of action in this case is not on the note but is on the covenant of assumption in the mortgage, yet the note is the evidence of the indebtedness and the right to sue on the covenant goes with the note to whomsoever it is transferred. The note was not introduced in evidence, nor was it shown where it was. The foreclosure proceedings show on their face that the foreclosure occurred before the maturity of the note, and while it was attempted to be shown by oral evidence that the procedure in Kansas is to file the note with the clerk of the court in which the proceedings are had, yet it was not shown that such was done with this note nor anything offered to show that, if it was, it was not subsequently withdrawn. The mere acceptance and recording of his deed by defendant is not sufficient evidence of his assumption of the mortgage debt to bind defendant in a case where the issue is whether any such agreement was made. [Johnson v. Maier, 194 Mo. App. 169, 172.] Hence there was no evidence in the case sufficient to show that plaintiff was entitled to recover. As said by ROMBAUER, P.J., in Pharris v. Surrett, 54 Mo. App. 9, l.c. 12, to permit a recovery under such circumstances "might subject a defendant to a judgment at the instance of the holder of the mortgage and to other judgments at the instance of the holder of the notes." There was no reversible error in refusing the declaration.

Some complaints are made as to the erroneous admission and also exclusion of testimony, but upon an examination it is manifest that if any of the admitted evidence complained of was not admissible, it could not change the result reached by the chancellor nor justify this court in reversing the judgment. The same is true as to the evidence excluded. [21 C.J. 559; Harlan v. Moore, 132 Mo. 483, 489.]

The judgment is affirmed. All concur.