Stark v. Kirkley, 129 Mo. App. 353

Stark v. Kirkley

129 Mo. App. 353 | Mo. Ct. App. | 1908

BLAND, P. J.

(after stating the facts). — 1. R. H. Williams, a witness for plaintiff, testified to the amount due on each of the contracts sued on. Defendants objected to this evidence on the ground that there was no evidence tending to show that they, or either of them, were in anywise indebted to plaintiffs or had any knowledge of Kirldey’s indebtedness to plaintiffs. The court said: “I will let that go in subject to objection.” It was ruled in Seafield v. Bohne, 169 Mo. 537, that the receiving of evidence “subject to objection,” is- a bad practice, and will be reversible error if the point is properly preserved by exception. The same ruling was made in Ashbury v. Hicklin, 180 Mo. 658. But an error of any kind, to work a reversal, must be prejudicial to the interest of the party assigning it. Williams’ evidence of the amount due on the contracts was a mere matter of calculation which the judge could have made for himself, or have had the clerk make for him, and hence did not prejudice the defendants.

2. The second point in defendants’ brief is, that when mortgaged property has passed to a third party, the latter is entitled to a set-off, recoup or counterclaim as against foreclosure and may plead want or failure of consideration. Defendants pleaded a failure of consideration and introduced evidence tending to show a partial failure, but the court, on substantial evidence, found against their contention.

3. The point is made that there is nothing in the two contracts to indicate who are members of the firm of Stark Bros., and hence there is no grantee named and the legal title did not pass. In Arthur v. Weston, 22 Mo. 379, the question was whether a deed from Azariah Holcomb to W. W. Phelps & Co., would take effect as a legal conveyance of land to Phelps, Cowdrey and Whitmore, the persons composing the partnership, upon proof of that fact. It was ruled that it could not.

*360In Riffel v. Land & Lumber Co., 81 Mo. App. 178, it is said: “If none of the individual names of the copartnership appear in the deed, ... it must fail to carry the legal title to the land,” etc. Plaintiffs do not claim they acquired the legal title to the land, but only claim that they acquired an equitable lien and that on proof (which they made) of the members composing the partnership, they were entitled to have their equitable mortgage foreclosed. In Arthur v. Weston, supra, the court, at p. 378, said: “We must not, how-ever, be misunderstood; our present decision refers to the transfer of the legal estate only, and does not touch the equitable rights of the parties growing out of the transaction.” Jones says, “the attempt to create a security in legal form upon specific property having failed, effect is given to the intention of the parties, and the lien enforced as an equitable mortgage. . . . As stated by Judge Story, ‘If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage.’ Effect has been given in this way to a deed of trust in which the name of the trustee was accidentally omitted; to one from which a seal was omitted by mistake,” etc. [1 Jones on Mortgages, sec. 168.]

In Sprague v. Cochran, 144 N. Y. l. c. 112, the court said: “There can be no doubt upon the authorities that where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, to which, if executed, is so defective or informal as to fail in effectuating the purpose of its execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt.”

That Kirkley intended to give plaintiffs a mortgage on his land as security for the purchase price of the *361trees, does not admit of doubt. The fact that it failed in legal effect on account of the obscurity in the name of the mortgagee cannot defeat the equitable quality of tbe lien on proof of who was intended to be benefited by tbe mortgage.

4. It is contended that tbe contracts- in tbe form of a mortgage were not properly acknowledged and although recorded did not import notice to defendants. Tbe acknowledgment to tbe second contract is in statutory form. Tbe acknowledgment to tbe first one is as follows:

“State of Missouri, County of Butler, ss.

“On this tbe thirtieth day of June, 1893, personally appeared before me Alfred Kirkley known to me to be the person whose name is assigned to tbe above contract and acknowledged it to be bis act and deed.

“In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in Beaver Dam Township the day and year first above written.

“(T. S. C. Ashee, J. P. Seal) Notary

Public. (Seal.)

“My term expires 1894.”

Tbe Avord “assign” instead of tbe word “sign” is used to state that Kirkley signed tbe instrument. This was evidently a mere slip of tbe pen in tbe bands of the officer wbo took tbe acknowledgment and ought not be held as debarring tbe instrument from record. But aside from this, this objection is made here for tbe first time. No such objection Avas made to tbe form of acknowledgment’ on tbe trial, and tbe answer does not allege that defendants are purchasers in good faith, without notice, and for a valuable consideration, nor did either of tbe defendants testify that be was a purchaser without notice of plaintiffs’ equities. But as plaintiffs alleged that defendants bought with actual notice, it is contended that it devolved upon them to prove that *362allegation. After alleging the execution and acknowledgment of the contracts, and where and when they were recorded, and the interest plaintiffs acquired thereby, the petition alleged that defendants accepted their deed with full knowledge of the plaintiffs’ debt and the lien upon the above described real estate. The recording of the instruments imported notice to all persons of their contents, and defendants being subsequent purchasers are deemed in law and in equity to have purchased with notice (R. S. 1899, sec. 924; Digman v. McCollum, 47 Mo. 372; Geer v. Lumber & Mining Co., 134 Mo. 85, 34 S. W. 1099), and plaintiffs made out their case when they showed the contracts sued on had been signed and acknowledged by Kirkley and recorded prior to the acquisition by defendants of any interest in the land. Defendants introduced no evidence sufficient in our minds or to the mind of the chancellor to overthrow this prima-facie case.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.