*1 [Burkey validity will acceptance not transfer. affect Acceptance after death of the Burkey, W. 175 S. l. c. v. 624.] bank delivery of the to the grantor to the deed dates back time Latham, as of date. and renders it a transfer [Williams Sneathen, 104 Mo. c. 113 Mo. l. Sneathen 209.]” foregoing applicable situation facts reached, conclusions we have parties, ease at bar. Under the directions judgment and the cause remanded with reversed C., concurs; judgment Seddon, Ellison, to enter defendants. C., not having sitting, been of counsel. adopted opinion foregoing PER CURIAM: The Lindsay, 0., judges concur. opinion All of the of the court. of Ora A. McFarland, Administrator Estate Othar McFarland, Hoyt. S. Melson G. Appellant, v. Edmund P. John (2d)W. 63. One, September 1929.
Division *2 V. Seed O. and Ward & appellant. Beeves *3 respondents. & Zimmerman for Smith *4 principal, $9,300 ELLISON, C. Action at law recover about *5 certain with interest on attorney’s addition, and balance due fee in mortgage trust notes, deeds sale under the two foreclosure securing full mort- them having paying fallen that much short of gage mortgagee debt. The plaintiff’s payee and was intestate T. mortgagors. and Y. makers and Schoonover and wife were the trust deeds notes and execution week after the a About Hoyt, Melson defendants, Messrs. mortgaged to the land sold the was conveyance reciting the expressly warranty deed
by general at plaintiff contends trust, deeds subject to the the defendants therefor consideration part as sale and of the time Schoonover encumbrance. pay agreed assume orally suit. in joined as defendants were not wife and there of venue County change on was taken to Scott The case for judgment From jury being waived. court, a to the tried assignments of principal The appealed. has plaintiff defendants finding support the evidence substantial no are there was error requested refusing certain in court erred judgment; and that not be agreement need alleged oral stating the declarations of in evi- circumstances implied facts and might from express be dence. bought 19, 1920, Schoonover April on facts, briefly, are that The intestate, Ora County from the in Pemiscot quarter of land section purchase price $14,400. making the McFarland, per acre, $90 A. $11,200 by the in and the balance paid cash $3200 Of was and deeded the this suit. He sold involved and deeds of trust in *6 notes, trade thought’ Iloyt Melson would pay lie lie and said he added paying, and somebody the land else and let them do out.” "1 farm paying never paying off, heard tell of.a fellow a note from expressed in the deed receipted consideration for ¡Schoonover ac- Hoyt of cash $4800, and Melson the amount was if deed, as tually paid; stamps put $16 but were on the revenue fee-simple it passing $16,000 title were a valuation at —and will be price remembered sale this on the cash was basis which figured. was On not know point Mr. did Schoonover testified he why scrivener, stamps that amount of used, thought was but he Mr. McKay, said “I it would don’t take that much. He continued: know anything there, about stamps, put the revenue I them only on because required putting the law they that’s some told me on what it took. . . . McKay We left deed with Mr. at that bank and Mr. McKay is the I got stamps; paid one that for them. got I a letter from Hoyt’s Mr. Hankins, secretary, Mr. me reminding they put stamps had $16 worth deed, on this and I sent them the $16; no, I don’t I paid Hoyt got know whether I McKay, or but letter from Mr. saying stamps. Hankins it $8 taken more for revenue Q. 'You put $16 on purchase price because $16,000 was —one dollar a thousand?’ A. 'Well, I think; that’s what I that’s all knew it about at time; that the law put said them on and that’s reason putwe on. I them covering was the indebtedness in $4800 this. The $11,200 cash and the deed against of trust up the land made ” $16,000, and I putting stamps on it to cover amount.’ the entire
As to the bearing evidence on the acts parties and conduct of the after the sale of the land. Hoyt It undisputed that and Melson possession went into through croppers tenants, they that collected the rents, paid made some improvements, taxes and first paid the year’s interest all April the notes on 26, 1921. In this connection Mr. Schoonover testified that when coming this interest was due McFarland wrote him about he, turn, wrote Melson. Melson replied stating he would write McFarland; that capable taking care of their business, own (Schoonover) and that he needn’t worry it. about It was also shown, by respondents, that about this same time McFarland secretary wrote the respondent Hoyt giving notice of the approaching maturity payment of the interest for the year, first saying, “I do not just know who paymaster, is the presume it will be through your handled A office.” little later he respondent wrote the stating, Melson "I granted take it for you do protect not intend your equity,” and declaring he would turn the deed of trust over to the trustee for foreclosure. After the year’s second interest delinquent became mortgagee, McFarland, respondents executed a written agree- extension ment reciting that whereas paid had past certain due con- insurance, therefore
taxes on. the land and for certain fire agreement to respondents’ payments, sideration of said payment of year, the end taxes of that time year. one was extended one of notes secured $800 interest and *7 1923, of summer The in the appellant testified that administrator with a conversation had foreclosure, attorney before his the he and mortgagee notes, Melson an effort to a collection of the effect know having says he didn’t died in the He stated meantime. Melson disagreed just Hoyt had it, what would that he and do about would be discount what partnership. dissolved Melson asked appel- due). The if all paid (they allowed he off not *8 Freudenstein, Morgan, 382, 386; 56 Mo. Laclede v. App. Laundry Co. App. 179 175, Mo. 161 W. S. 593.] delivery Again, some and say decisions the execution of the deed possession by grantor on one side such performance constitute alleged agreement as takes the oral to assume out of Statute opens proof way [Murray Frauds and 1 Smith, thereof. v. (N. Y.), 412, 429; Ely McKnight, (N. Y.) 97; Duer v. 30 How. Pr. Remington v. 62 Palmer, N. Y. is in Ely case followed 31.] Brown, Nelson 41 580, 588, v. 140 Mo. 960,W. 962. S.
It is not our purpose inquire to into the correctness of these several theories, or to discuss their relative refer merits and weaknesses. We simply to them to show in that view of the matter it must be recognized question and going is involves outside the deed enforcing agreement an which at least some measure at variance with the if terms instrument a contract not as as operative conveyance. an being
This it declared, has been wisely, and we think that the importing alleged evidence undertaking should be clear and con vincing. In Morgan, Hall v. supra, 79 l. 52, Mo. c. said court express, roust be and the same is ruled in SreenLen't
State Irwin, App. Ins. Co. v. supra, 67 Mo. l. In c. 94. Natl. Co., Home & L. Assn. v. Scudder-Gale Grocer B. App. supra, 252, required 82 Mo. l. grantee c. where the deed conveyance to taxes and subject recited the certain a mortgage, the court strong persuasive said this was evidence that mortgage was not assumed. Shackett, In Keifer v. 85 Mo. supra, App. 452, c. agreement l. the court held the to assume be “must clearly by established, accepted either a recitation in the deed at the by contemporaneous obligation time or a then entered into.” In
986 1085, 304, 72 S. W. it stated App. 301, Mo. Weir, v.
Hefferman 99 valid, be established must assumption is but promise such a vérbal by inference. implied cogent be and cannot clear and evidence deci approvingly in more recent are cited Some of authorities these just men proposition particular sions without reañirmance they point tioned, never overruled have been 778, C. J. sec. ought be is elsewhere. state the law it [41 (8 Ed.) 150, 380; Mortgages 2 19 L. p. 730; p. R. C. Jones on sec. Rowe pp. 727, 728; v. p. ibid, 2221, 3 Coliins 937, 300; 2212, sec. secs. Chamberlin, 97; Knighton v. (N. Y. New Cases, 1 Supr.), Abbots’ 130, 89 Wash. Hawkins, v. 703; 84 164 Pac. Chaffee 153, 159, Ore. 62, Harvey, 57, 107 Kan. Pac. 143; Woodburn v. Pac. (Tex. 248 S. App.), Land & Co. Civ. Holland Belcher Mort. 803,W. 806.] qualified The last be some. The perhaps statement above should preceding para Hall and Ins. Co. first cited the State cases graph say agreement express, must he and the Heffer- to assume says implied by infer agreement man case cannot last cited be particular ence. This no form general is too broad. The rule is that assumption, a necessary words to constitute contract of implication. an may R. C. to assume arise L. [19 151, p. 380; J., sec. 769, p. C. sec. But true the evidence it is 723.] convincing; to establish the contract must and that be clear parties agreed—-that must be appear meeting made there was of minds—on proposition grantee that the should make the mort gage own,- debt proven his or else circumstances must be such as estop grantee liability, denying from case the which implies promise part. on his There is apparent holding Cottrill, an in Landau Mo. *9 318, 320, 60 64, 66, subject S. expressly W. that if a deed is made to an incumbrance and the evidence the thereof shows amount was
subtracted from the estimated worth of the land in computing equity redemption, the the value of of the part price purchase becomes of the and encumbrance pay authority (though it. The is cited as grantee is bound to case the holding supra) in full of the Gilmer v. not, perhaps, to the extent W. (Mo. 256 S. and Reed v. App.), 124, (Mo.), Steward 276 Powell 12; of these decisions are ap- S. W. all three relied on pellant here. foregoing convincing is clear agree do that evi
We not agreement agreement assume, an or that such dence of an should (Fuller In implied fact, is no evidence at all be therefrom. it App. 96, De'Volld, l. supra, Mo. l. c. S. W. c. Hiemenz every purchase in Starck, 449); ordinary l. for supra, 198 S. W. c. necessarily ascertaining in equity process an involved its value of of worth from the of the encumbrance amount is to deduct the parties agreement of the If the real intention interest covered. pur- be the shall interest is full value of the unincumbered that the as a is allowed of the encumbrance price paid and the amount chase belongs really thereby money represented purchase credit, then the liable, personally grantor grantee to the and the becomes in effect leaves the transaction promise his implying because merely he so, where but not purpose; in a his hands fund for that though use the he redemption even buys pays equity for the p. figures C. J. sec. computations. in same his 724.] [41 agreement on by appellant It that an is further contended implied be must part the deeds of trust respondents to assume “profit” or for testimony paid $1600 from the that Schoonover was ’’ quoted words are of the two Definitions beyond the price advance in showing former means agree latter, trade, contract purchase; and the or cost of gain profit if he failed could asks how Schoonover Appellant ment. argument have This would original investment. back his get ¥e look other facts evidence. must if were for the weight not it only time. Schoonover owned at the as it existed at the situation thought cash redemption. $3200 bis investment as equity of He way. respondents paid told he spoke he had of it He that profit. be $1600 wanted that back and of trust were to deeds standing. Nothing assumption. left was said about their The land high value, respondents then shown fact that paying equity. $4800 Doubtless not it did occur to parties might get security of the to be worth less than the mortgage amount of the debt. Considering conversation alto gether nothing there is indicating Schoonover im intended to pose respondents personal liability payment for the mortgage or that taking so In understood. over Schoonover’s “bargain” they simply bought his equity price paid at the he for it gave him $1600 more.
The next
contention is that the acts of the
paying
an
installment
on the mortgage
interest
notes and in procuring
extension
are evidence of a contract
to assume the
^rst stance. On
proposition
the follow
ing
quoted
Cyc.
from 1348: “The fact
grantee paid interest or a part of
principal
debt,
negotiated
with the mortgagee in regard to its payment, pertinent.” This statement
is repeated, substantially,
Corpus
in 41
Juris,
page
sec.
730. The eases cited as supporting the text are
*10
McKay Ward,
v.
988 two in the first shows that an examination of these decisions
But issue question at assumption the clause and contained an the deed Illinois thereby. In the grantee bound or not the was whether was the encumbrance partial payment court on case the said evidence of knowledge part on the competent because actual it established negatived any grantee of the existence of the encumbrance father for a con- repudiation In case a of clause. the Arkansas mortgaged his The quitclaimed land to son. one dollar sideration of mortgage. In to foreclose and for a. ivas a suit deed silent as to the alleged the real consideration deficiency judgment complaint mortgage conveyance by the son assumption was the of allegation there- must deny Thé held the his answer did not it. court certain letters written stated true, be taken as further fore practically of which lien-holder, son least one father and at shoes with reference to the stepped said the son had into the father’s mortgage, an land evidence of to assume. rulings, into of going further the refinements these Without distinguishable apparent question The the cases are their facts. controversy bought only whether respondents the instant subject they two of trust whether assumed them. In deeds or protect their either it ivas natural for them to want to invest event redemption payment equity of that the ment in and we cannot see (much security) seeking of interest in value under tendency they dulgence mortgagee whatever to from the has show merely equity redemption. did not The better reasoned bu3^ p. 779, 731; sustain J. sec. v. authorities this view. C. Frase [41 S. 562, 11; 566, 134 10, 152 Mo. W. Bank Lee, App. Spring Citizens Thomas, App. 581, 592, v. 214 264 86, 88; field Mo. S. W. Keller v. Fitzgerald Ashford, 444, 455-6; Flannagan D. C. v. (Iowa), 125 995, 997; Feigenbaum Hizsnay, N. W. Supp. Y. 223, N. Sackett, 132, 342, Elliott v. 2 Sup. Rep. U. S. 375, Ct. 27 L. Ed. 678.] appellant further paying contends that the interest and
asking respondents betrayed for more time the appellant’s in- granting testate into the extension knowledge without the or consent malcer, Schoonover, and that this had the effect releasing theory surety him on that he became a purchased when principals respondents the land. From .this deny respondents estopped are argued the it is the assumption. . . . “the makers consent provided The notes the time of ’’ notice; may without payment be extended even under Bank 687-8, Douglass, App. 664, 178 Mo. of Senath S. W. perhaps have been released Schoonover would if had beginning. If, however, they only assumed the debt bought mortgage (and subject shows) we think the evidence so Schoon- *11 the Where argument fails. surety and become the over did not it mortgage, subject to the purchaser granted a mere extension is to is rule 383, the Ruling Law, better page sec. said in Case is the of the extent only to mortgagor grantor is released that the benefit had the has appellant land; case the of and in this value by of that his foreclosure. in transaction. estoppel no elements
Furthermore there are response in they so not did respondents paid When interest in- with the compliance upon obligors in to a as but demand them paymaster who stating know expressly he did not testate’s letter to the re- appealing clearly was. second shows he was His letter equity. spondents they their only ground protect should that on the part on the agreement no promise The extension contains they does not show pay the evidence the debt and any time. at the intestate representations made of that nature to letter to Melson the deceased’s And when referred Schoonover due, replied year’s and Melson stating first interest would soon be telling Schoon- saying write the deceased Schoonover he would Hoyt) (Melson capable they over were worry, not to simply had to do with taking care of their own business—all that evidence, payment first interest substantial year’s and is not see, Hoyt so we as can that Melson and had assumed whole far bought may they Indeed, the inference be drawn debt the land. when quite Hoyt option had an well Melson and as from as they not; why would interest or otherwise should whether they capable worry, tell Schoonover not to and that looking after their own business.
A briefs, few other of evidence are mentioned in the matters by discussing we opinion not It shall extend the them. our conclu- that, sion from whole record measured which standards imposes character, clearly of this the trial cases court was right deciding respondents, the case for the and that there was no judgment support appellant. substantial evidence for the This refusing being appellant’s the trial court’s error in declara- declaring assumption law numbered tions express implied from need not be and could be the facts cir- evidence, reversible, judgment cumstances was not CC., Seddon, Lindsay affirmed. concur. opinion adopted foregoing PER C., CURIAM: The Ellison, All of judges concur. opinion court. notes November, Thereafter, respondents April 26, 1920. on land to 'foreclosed by saying, of trust were anticipate the deeds we will sale contained therein and the land power of the trustee under the notes, on net, was credited brought which amount $1900, about leaving prices Mis- for. In land southeast the balance sued high in. good; depression set souri were and times wore later testimony respect There not much in the with conflict negotiations culminating oral in the execution deed. Prac- tically say all the witnesses on both sides Schoonover the re- told spondents $11,200 charged mortgage debt he on about had land, and that he informed them he paid to $3200 wanted the cash he had profit $1600 McFarland and equity bargain. for his or for his Appellant used one of the witness, his own and the latter said “equity.” used the Schoonover, Schoonover word him- self, who respondents, says testified for he may have done but he “give my money thinks he said you me $1600 back and can have it, my bargain, or something or Every witness, to that effect.” unless it be Schoonover, equity said it sold; was the that was but most of agreed them that Schoonover also stated the conversation he wanted $1600 profit, paid for his bargain, $3200 and the cash he had out. making $4800 price the cash sold, interest with the deeds of trust left standing question the land. gran- as to whether the tees should assume the deeds of trust never mentioned, though Schoonover testified that when sold he he expect land did not
Notes
notes by the foreclosure says lant he further notified of foreclosure sending copy notice publication each a of the trustee’s by registered sale mail. to light think, most favorable evidence, This states we in the appellant. country that over the generally law is settled in Missouri reciting conveyance by grantee when land a takes title to deed subject imposes him itself, incumbrances, deed, is to certain R. C. L. personal liability respect no with thereto. [19 p. 757, 151, p. 380; 41 C. sec. 755, 715, sec. J. section 52; 717, p. 721; p. Morgan, 47, v. 767, sec. Hall 79 Mo. Leahy (Mo.). (2d) 897, 900-1; v. 9 Fuchs W. Walker S. 631, 634; App. v. 54 Goodsill, App. Irwin, Mo. Ins. v. 67 Mo. State Co. 90, 94; Co., v. 82 Mo. Natl. B. L. Assn. Home & Scudder-Gale Grocer 452; App. 245, 251-2; App. Van 449, 85 Shackett, Keifer v. Mo. Poole, 433, 6; App. 437, 5, Meter v. 110 S. W. v. Mo. Puller 1011, DeVolld, 1012; Hiemenz v. App. 93, 96, Mo. W. S. (Mo. App.), 447; Harper Starek Estate 198 S. W. Mesker v. Real (Mo. & Inv. App.), (Mo. Co. 221 S. W. Casner Heaton 407, v. App.), 237 1042, S. W. 1043.] weight But while authority this is in this other and most states against unequivocal holds that recital of nature as an the above in a deed, may by the fact nevertheless established testi- parol be mony grantee agreed pay assumed and to wholly thing; ap- rule incumbrance—a different and the plies this, to eases such as where the between issue arises party mortgagee one to grantee and not a or lien- deed—the always is The theories on which such latitude allowed are not holder. jurisdiction. accord, even in the same put ground stranger, In is some decisions doctrine on the that a dispute terms, a to written is not forbidden to even instrument its though thereby, of the relation created he claims benefit and that may he show evidence extraneous the real between parties. Through reasoning appears this course be the mortgage is subject ato premises purchaser tliat a states in some however words, form by the in his deed of insertion powerless claim of subsequent possible a forestall stringent and binding, as mortgage debt agreed entire orally that lie lienholder One 1226, L. R. conveyance. A. note.] consideration for the [50 cited 198. It is Dorr, 72 Me. along line Burnham v. of the eases 110 Mo. Cook, v. in Bensieck followed without discussion 186, 19 S. W. 645. agreement to an many theory cases is that Another advanced thereof proof independent contract, parol and that assume is an not contradict merely does explanatory of the consideration and though title conveyance, impair the the deed effectiveness of is silent when it expressly passed subject incumbrance, or even against incum- warranty subject and on the contains a covenant of wholeheartedly ac- cases, however, All the brances. Missouri do not memo.; cept Brown Isaacs, App. 568, this view. 8 Mo. [Klein