33 Mo. App. 505 | Mo. Ct. App. | 1888
Two questions arise on the record in this case. They are, (1) where a mortgage appears upon its face to secure an absolute debt, such as a note described therein, is parol evidence admissible to show that the note and mortgage were in fact given to secure a contingent liability of the mortgagee as the mortgagor’s surety to an amount not greater than said debt ? (2) In the absence of fraud is such a mortgage valid against a subsequent mortgage? Both of these questions must be answered in the affirmative on the authority of the following cases: McKinster v. Babcock, 26 N. Y. 280; Lawrence v. Tucker, 23 How. [U. S.] 14 ; Goodheart v. Johnson, 88 Ill. 61. As to the first question, see also, Jones on Chatt. Mort. sec. 90; Foster v. Reynolds, 38 Mo. 553 ; Baile v. Ins. Co., 73 Mo. 386. And as to the second question, see also, Blincoe v. Lee, 12 Bush (Ky.) 358; Varney v, Hames, 68 Mo. 442; Jones on Chat. Mort. secs. 82 and 88.
Judgment reversed and cause remanded.
