Scott v. Bailey

23 Mo. 140 | Mo. | 1856

Ryland, Judge,

delivered the opinion of the court.

This is an action by Patrick H. Scott and Sarah B. Scott against William Bailey and others. It is founded on a deed of trust, dated October 20th, 1843, made by Bailey to Ferdinand W. Risque, of a certain tract of land in St. Louis eounty, m order to secure among other things “ the payment, in twelve months from the date thereof, of about two thousand dollars, to Patrick H. Scott and Sarah B. Scott, being the amount of principal and interest due on a promissory note made by Bailey, in favor of said Patrick H. Scott and Sarah B. Scott, and by them endorsed, and then held by Mrs. Elizabeth Cabell, of Virginia.5’ The action is against the said Bailey .as the creator of the trust, the trustee, Risque, and the purchasers under Bailey, in order to subject the property to the purposes of the trust. The proceeding is under the act of 1847, authorizing deeds of trust to be foreclosed as mortgages. The deed of trust was properly recorded ; the facts were found by the court as set forth in the statement of this case ; and the court below, upon the facts found, dismissed the plaintiffs’ petition. Plaintiffs bring the case here by writ of error.

The court found “that Wm. Bailey, Patrick H. Scott and Sarah B. Scott, on the 8th of November, 1840, made their joint and several bond, under their seals, whereby they bound themselves to pay to Elizabeth Cabell and her heirs one thousand eight hundred and sixty dollars within one year from the 4th of November, 1841.” The court also found that the plaintiffs, P. H. Seotfc and Sarab B. Scott, were tbe sureties of Wm. Bailey in said bond in fact, but co- obligors on tbe face of tbe bond; that Bailey designed to secure tbe payment of that bond by tbe deed of trust to Risque, but that it was mis-described by mistake. Tbe court found that Mrs. Cabell recovered judgment on tbe said bond in 184T, against tbe plaintiffs, and that tbe plaintiffs paid it.

Tbe debt secured in tbe deed of trust is described as follows: “The payment, in twelve months from date of tbe deed, of about two thousand dollars to P. H. and S. B. Scott, being tbe amount of principal and interest due on a promissory note made by Wm. Bailey, in favor of P. H. and S. B. Scott, and by them endorsed, and then held by Mrs. Elizabeth Cabell, of Virginia.” The question here is, whether the description given in tbe deed is, in point of law, a sufficient description of the liability secured against. And it is not, whether parol evidence is admissible to reform the deed, or to show that by mistake one debt was described, when another and a different debt was intended. In the opinion of this court, the description is- sufficient, and the court below should have so regarded it. The grantor in the deed of trust did not pretend to describe tbe instrument with certainty. He says, the payment of about $2000 to P. H. and S. B. Scott, principal and interest, on a promissory note, made by Bailey in favor of them, and by them endorsed and now held by Elisabeth Cabell, of Virginia; whereas, the debt was evidenced by a bond to Mrs. Cabell by Bailey, and the two Scotts were his sureties to her. The object was to secure them for their liability for Bailey’s debt to Mrs. Cabell. There was no attempt to describe tbe instrument particularly; neither the date, the time when due, nor the amount. The grantor knew that he owed Mrs. Cabell about two thousand dollars ; he knew that P. H. and S. B. Scott were bound as bis sureties to her for tbe debt, and in his deed of trust he describes the debt as evidenced by his note to his sureties and by them endorsed to his creditor. The principal matters are set forth with certainty enough : the creditor, Mrs. Cabell, of Virginia ; the securities, and the debt.

In Jackson v. Bowen, (7 Cow. 13,) the reference in a mortgage to the collateral surety was to a bond bearing even date for $750, executed by the mortgagor to the mortgagees. The bond intended was dated a few days prior to the date of the mortgage ; was to the mortgagees and two others'; and was a bond of indemnity, &e., against a promissory note for $750, executed by the mortgagees and two others to the mortgagor or order, dated November 18, 1817, which the makers were obliged afterwards to pay; it was held that the variance was immaterial, and that the reference was sufficiently certain, or, if not, that it might be made so by parol evidence, showing that this was the bond intended. The note in this case, intended by the mortgage, was on demand, payable to the mortgagor or bearer, and dated on the 17th of November, 1817 ; whereas, the bond recited it as a note for $750 generally payable to the obligor or order, and dated 18th November, 1817. This variance was considered as immaterial, and it was held that the obligees might, by parol, show what note was intended by the bond. Woodworth, J., in delivering the opinion of the court, said : “ The mortgage was prior to the judgment; it was to secure $750 according to the condition of a bond executed to the mortgagees. The bond produced was executed to the mortgagees. The reference in the mortgage is not of a bond to them solely, and the addition of two other names is not therefore contradictory. The mortgage does not profess to set out the bond particularly. What is stated is a matter of description merely, not an affirmation of the precise form of the bond. The material fact alleged is, that there was a bond to secure $750 to the persons named as mortgagees ; but whether to them solely or jointly with others, is not averred. It is well settled that even a mistake in a recital to a bond does not vitiate, for it is no direct affirmation, and is not an essential part. In what manner and at what time the bond was payable, is nowhere alleged; that necessarily depended on the instrument referred to. The legal presumption is, that this was the bond intended, at least until some doubt was raised. But there is no room for presumption; the fact is established by parol testimony, which was properly admitted. The condition of the bond recites the .giving of a note for $750, payable to Noble or bearer. Here, the same principle that makes the bond admissible under the description in the mortgage, is applicable. The note is substantially described ; the substitution of bearer for order, according to the doctrine before advanced, is immaterial. It was a mis - description merely. There is satisfactory evidence that this was the note against which the makers were secured. They have taken it up, and were entitled to the benefit of the mortgage as a valid security.” We think the principles of this case from Cowen are correct and sound, and, applying them to the case at bar, it will appear very conclusively that the variance in the description of the debt secured from the debt intended to be secured, and which existed at the time of making the deed of trust, is immaterial. The principal object was to secure the two Scotts as his sureties in a debt due by him (Bailey) to Mrs. Elizabeth Cabell. The deed did not pretend to describe minutely the instrument by which this debt was evidenced ; and the plaintiffs having taken up the bond for which they were his sureties and brought suit upon Jhe deed of trust, it is legally presumed that this was the instrument by which their liability was created for Bailey, and to secure them against which this deed was executed. But the proof of Bailey puts it beyond doubt. The finding of the court also puts it beyond doubt. (See Johns v. Church, 12 Pick. 557.)

There can not be a necessity for this court again to assert that parol proof is properly admissible to show that a co-ob-ligor in a note or bond is a surety for the principal obligor therein. In Duvall et al. v. Rasin et al. (7 Mo. 449,) this court held that endorsers were viewed as creditors, and a deed of assignment for their security is valid, althoughcno payments had been made by them at the time of its execution. The defendants were at liberty to show that this was not the debt intended to be secured by the deed of trust; but in the absence of all proof that there ever was any other debt to Mrs. Cabell which was secured to her by the Scotts as sureties for Bailey, and with the proof before the court, judgment should have been rendered in favor of plaintiffs, subjecting the trust property to sale.

Had the plaintiffs alleged in their petition that they had never become the sureties for Bailey in any other but the one debt, and that this was evidenced by the bond set forth in their petition to Mrs. Cabell, there could' not have remained a shadow of doubt upon their right to offer the proof by parol, that this was the intended debt alluded to in the deed of trust, and consequently of their right to recover and subject the trust estate to the purposes therein mentioned. ,

Upon the whole case, it is the opinion of this court that the judgment below must be reversed, and the cause remanded,

the other judges concurring.