85 Mo. App. 265 | Mo. Ct. App. | 1900
— This is an action of debt on an appeal bond executed by the defendant William Somerville. John R. McDonald was indebted to A. K. Florida in the sum of $3,750, for which he gave his note. To secure the debt McDonald executed a deed of trust on an improved lot situated on Chestnut street in the city of St. Louis. By mistake of the scrivener, who wrote the deed of trust, the note was described therein as $1,350, instead of $3,750. The plaintiff
The recitals in the appeal bond are as follows: “That whereas, William Somerville, Herman A. Haeussler and John R. Stickfort have appealed from the decree rendered against them and in favor of the said Mississippi Yalley Trust Company, reforming and directing the foreclosure of a certain deed of trust in the circuit court city of St. Louis, for the sum of thirty-seven hundred and fifty dollars and interest, together with costs, said decree being against the real estate by said deed conveyed.
“Now, if said appellants shall prosecute their appeal with
The main contention of the appellant is that by the terms of the bond the defendant bound himself to pay the mortgage debt in case the decree reforming and foreclosing the deed of trust was affirmed. By no sort of construction of the bond can this view prevail when the nature of the judgment appealed from is considered. Somerville had not, in the purchase of the property, rendered himself liable for the payment of the mortgage debt, and the decree of the circuit court did not attempt to make him liable therefor. The extent of the decree against him was that he held the property subject to the payment of the full amount of the note intended to be secured; that a certain sum was due on the note and that the property in his hands was subject to sale to satisfy the balance, and that unless he or some one else within a specified time should pay the amount found to be due, together with the costs of the suit, the property would be sold, and his equity of redemption foreclosed. As the statute provides but one form for bonds for appeal in all cases the nature of the judgment appealed from must be considered in determining the measure of the liability of the obligors. Thus in Hunt v. Hopkins, 83 Mo. 13, which was a suit to enforce a special tax bill, the supreme court held that a judgment for the amount of the tax bill could not be entered on the appeal bond, for the reason that there was no personal liability against the owner of the land, who was the obligor in
The appellant relies on Staley v. Howard, 7 Mo. App. 377, as announcing a .contrary rule. That was a suit on an appeal bond which was given in an action in equity to subject the separate property of a married woman to the payment of her debt. There was a decree against her in the circuit court, which was affirmed on appeal. This court held the obligors in the bond liable for the amount of the judgment upon the idea that as the equitable obligation of the woman to pay her debts was recognized the judgment must be regarded as a judgment for money against her, although only operating indirectly against her through the property. Therefore the court decided that when the obligors in the appeal bond contracted “to perform the judgment of the circuit court so far as it may be affirmed,” they agreed to pay it if it was affirmed. The distinction between that case and this is obvious. Here there was no obligation whatever on Somerville to pay the mortgage debt.
Counsel for appellant also cite George v. Bischoff, 68 Ill. 236 as authoi’ity to sustain them in their contention. In that case the appeal bond expressly recited that a judgment for so much money had been rendered against Bischoff, the principal in the appeal bond, and it was also stipulated in the bond that the judgment should be paid in the event it should be affirmed. The court held that the obligors in the bond were estopped to deny what they had solemnly admitted
Our conclusion is, that there was no assessment of damages in the appellate court, the defendants fully per-, formed the conditions of their bond by paying the costs of the suit and surrendering the property to be sold under the decree. Therefore the judgment of the circuit court will be affirmed.