54 Mo. App. 9 | Mo. Ct. App. | 1893
— This is a statutory proceeding-to foreclose a mortgage. The trial was before the-court and resulted in a judgment of foreclosure with award of special execution, and execution over for the-residue. The defendants, appealing, assign for error that the court erred in not requiring the plaintiff to-produce the notes secured by the mortgage before rendering judgment, and also erred in not sustaining-defendant’s plea of a total failure of the consideration, of said notes, and that the judgment is unwarranted by the evidence and excessive.
This assignment of error is based upon a misconception of the pleadings. The petition does not purport to be founded upon any notes, but upon a debt evidenced by the mortgage alone. The defendants’ answers and motions are not directed to the petition, but to an instrument filed with the petition as an exhibit, and forming under our practice no part of the record. Kearney v. Woodson, 4 Mo. 114; Bowling v. McFarland, 38 Mo. 465; Kern v. Ins. Co., 40 Mo. 19.
On the other hand the respondents’ claim that these motions were properly overruled, because not made before the filing of the answers, is equally untenable. Had the petition shown that the action was founded
As, however, there is no. controversy touching the fact that the mortgage did secure two promissory notes, which were neither filed with the petition nor produced at the trial, nor their absence accounted for, we ought not uphold the judgment, notwithstanding these technical defects in defendants’ pleadings. When the .mortgage was given in evidence, the court was bound to take notice of the fact that it was given to secure two notes, and the defendants then a!sked a declaration of law renewing the objection which they had formerly made by a motion to dismiss. ' It became the duty of the court to dismiss the' case at that stage of the proceedings, as it was then again asked to do,- unless the notes were produced or their absence satisfactorily accounted for.
Under the well-settled rule in this state a debt is the principal thing in a mortgage given to secure it, and a transfer of the debt carries with it the security. Mitchell v. Ladew, 36 Mo. 526; Watson v. Hawkins, 60 Mo. 550. The plaintiff’s petition fails even to allege that the debt is still due the plaintiff, and it nowhere appeared in evidence that the plaintiff held any of the notes at the date» of the institution of the suit. To permit a, recovery under such circumstances might subject a defendant to a judgment at the instance of
The record is not in any shape to pass intelligently on the question presented by the defendants’ second assignment of error. There is no evidence in the record what title, if any, the plaintiff’s intestate had when he conveyed the land to the defendant Henry Surrett. The defendants did give evidence of a title in the heirs of John E. Bartlett by a chain of conveyances from the government and by descent, but they gave no evidence that those were the only conveyances of record touching this land. Non constat, but the title of the plaintiff’s decedent was a marketable title when he conveyed the land to Surrett. If the attempted defense is available at all, it is clearly not available without showing that the mortgagee conveyed neither a marketable title nor the possession. Whether it is available at all in the absence of fraud- we need not decide. The excess in the judgment, and error in the form- of the judgment entry, are conceded by the respondent.
For error in the court’s action in rendering judgment upon a debt evidenced by notes, without requiring either the production of the notes or a satisfactory reason for their non-production, as well as for excess in the judgment and error in ■ the judgment entry, the judgment will be reversed and the cause remanded. So ordered.