133 Mo. 625 | Mo. | 1896
One Anderson Birchfield by warranty deed dated the eighteenth of October, 1889, and recorded on the twenty-third day of October, 1889, •conveyed to the defendant James P. Anderson “the south half of lot 1 of the southwest quarter, and the south half of lot 2 of the southwest quarter, of section 6, township 24, range 10, containing seventy-nine and sixty-four hundredths acres” in Stoddard county. The said defendant James P. Anderson by his deed •dated the eighteenth day of October, 1889, conveyed the said real estate to James Birchfield, in trust to secure the payment to said Anderson Birchfield of three promissory notes of that date, each for the sum of $300, payable to his order with ten per cent interest; •one on the first day of January, 1892, one on the first •day of January, 1895, and the other on the first day of' January, 1897. This trust deed was acknowledged the same day, and filed for record and recorded on the second day of November, 1889. The said defendant James P. Anderson by another deed dated the twenty-first day of October, 1889, conveyed to the plaintiff, F. M. Ladd,- the south half of the southwest quarter of section 6, township 24,'range 9, in Stoddard county, in trust to secure the payment to plaintiff Charles D. Mathews of three promissory notes of that date — one
On the fourth of August, 1890, the said Ladd and Mathews instituted this suit against the said Anderson and Birchfield to reform said last trust deed from Anderson to Ladd by making the same read range 10' instead of range 9, and to declare the same a prior lien upon the real estate first hereinbefore described. From the decree of the circuit court reforming said last mentioned deed of trust and adjudging the same to have-priority over the deed of trust executed by Anderson to Birchfield on the eighteenth day of October, 1889, as prayed for, the defendants appeal.
1. The following, abstract exhibiting these conveyances chronologically will assist the inquiry:
1889.
Oet. 18 — Deed from A. Birchfield to Anderson.
Oet. 18 — Trust deed from Anderson to J. Birchfield for A. Birchfield.
Oet. 21 — Trust deed from Anderson to Ladd for Mathews.
Oet. 22 — Trust deed to Ladd recorded.
Oct. 23 — Deed to Anderson recorded.
Nov. 2- — Trust deed to Birchfield recorded.
There was ample evidence to sustain the court in reforming the deed of trust from Anderson to Ladd for the benefit of Mathews, dated the twenty-first, and recorded on the twenty-second day of October, 1889, and it is conceded that when so reformed it would cover the same land conveyed by the prior deed of trust from Anderson to J. Birchfield for the benefit of A. Birchfield, dated the eighteenth day of October and recorded on the second day of November, 1889, and the only question on this appeal is whether the court committed error in adjudging that the later deed of
The evidence tended to prove that the consideration of the warranty deed from Birchfield to Anderson was $1,200, and that the notes for $900, to secure which the deed of trust from Anderson to Birchfield was given, were for so much of the purchase money for said land; that prior to the execution of the deed Anderson applied to one Boughton, agent of the plaintiff Mathews, for a loan of $300 to pay Birchfield on the land for which he seems then to have bargained, which Boughton promised to let him have; that no money was paid by Anderson to Birchfield on the •eighteenth of October when the deed of Birchfield to Anderson, and the deed of trust by Anderson back to Birchfield for $900 of the purchase money, were executed ; that the deed was delivered' to Anderson and the deed of trust to Birchfield, who retained the latter until the second of November when it was placed upon record; that on the twenty-first of October, Anderson with Birchfield’s deed in his possession went to Bough-ton to get the money which he had promised him, handed Boughton the deed, who sat down with the deed before him, and drew the notes and deed of trust of that date for the benefit of his client Mathews, by mistake writing range 9 for range 10; that he let Anderson have part of the money that day and the remainder on the twenty-sixth of October, $300 of which he testifies he paid to Birchfield on the land. This $300 was evidently the cash' payment, and the three promissory notes for $900, secured by his trust deed, were for the balance of the purchase money for the land which A. Birchfield by his warranty deed of the eighteenth of October conveyed to Anderson. Birch-field by delivering this deed to Anderson clothed him with the apparent absolute ownership of the land and
The court found that at the time of making said loan and the execution of said deed of trust, neither Ladd, the trustee, Mathews, the beneficiary, nor the agent who negotiated the loan, had any notice of tho indebtedness by Anderson to the said A. Birchfield or of the said deed of trust' to J. Birchfield for his benefit. This finding is supported by the evidence, and as that deed of trust had not at that time been deposited with the recorder for record, and these parties had not actual notice thereof, the same was invalid as to them (see. 2420, R. S. 1889) and their deed of trust must be preferred to it. Trigg v. Vermillion, 113 Mo. 230. The-court therefore committed no error in holding that the deed of trust from Anderson to Ladd, trustee, recorded on the twenty-second of October, 1889, was superior to that from Anderson to Birchfield, trustee, recorded on second of November, 1889. The judgment is-affirmed.
