13 S.W. 1066 (Mo. 1890), Orr v. Rode

Citation:13 S.W. 1066, 101 Mo. 387
Opinion Judge:Barclay, J.
Party Name:Orr v. Rode et al., Plaintiffs in Error
Attorney:Ramey & Brown for plaintiffs in error. H. K. White and C. A. Mosman, for defendant in error.
Case Date:June 16, 1890
Court:Supreme Court of Missouri
 
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Page 1066

13 S.W. 1066 (Mo. 1890)

101 Mo. 387

Orr

v.

Rode et al., Plaintiffs in Error

Supreme Court of Missouri

June 16, 1890

Error to Buchanan Circuit Court. -- Hon. J. P. Grubb, Judge.

This action was commenced by the plaintiff October 30, 1880, against the children of John H. Rode, deceased, who are the sole devisees (and the husbands of such of them as were married women), and James W. Strong, Ira Brown and others, to foreclose a deed of trust in the nature of a mortgage executed by defendant Strong, dated April 3, 1867, purporting to convey certain land described in Buchanan county, Missouri, to defendant Brown, in trust to secure the payment of a promissory note of the same date, whereby defendant Strong promised to pay to the plaintiff, one year after that date, four thousand dollars, with interest at ten per centum per annum.

On the back of this note are the following indorsements: "Paid on this note two hundred and ten dollars interest November 16, 1874; October 23, 1875, credit by Weatherby notes, three hundred and fifty-one dollars, credit by Chesmore, ten dollars."

The pleadings in the case need not be fully given. The answers of certain of the defendants, besides general denials, set up the statute of limitations. The deed of trust sought to be foreclosed in this proceeding was executed by defendant Strong pursuant to supposed authority conferred by an earlier conveyance of John H. Rode, upon the construction of which the case chiefly turns.

The language of the deed, last mentioned, bearing directly on the pending controversy, is as follows: "To have and to hold the same, together with the appurtenances thereunto belonging, to the said party of the second part (Strong), and his successors and assigns forever. This conveyance is made in trust, however, for the following uses and purposes, that is to say: That, whereas the said John H. Rode is now indebted to divers persons; and whereas several judgments are now of record in said county of Buchanan, and which are liens upon the real estate and property hereby conveyed, and this conveyance is made to enable the said party of the second part to sell such parts of said property as may be desired to settle and satisfy said debts, and the said party of the second part is hereby empowered by the parties of the first part to make any arrangements which he may deem advisable with any of the creditors of the said John H. Rode, and in order to settle said debts he may give his individual notes for the same, and execute a mortgage on the before-described lands or lots, or any part thereof, to secure the same, upon such terms, and payable at such times as to him may seem proper and advisable; and he is also authorized to sell and convey any part of said property or real estate for such fair price as he may deem advisable for deferred payments of any of said indebtedness, selling the unimproved town lots first; that is, the lots having no dwelling house on, first, and the whole of the town lots before selling the said tracts of land or any part thereof, and continuing to sell such parts as may be proper and necessary, until all of the said debts, which are liens on said real estate, are paid, and then such other debts as may now exist against said Rode, paying his security debts last. And, it is further understood, directed and agreed that after said debts are paid, that said lands are not to be disposed of or sold by said party of the second part unless it is to reconvey the balance thereof to the parties of the first part, or to convey the same by their written request or concurrence in writing."

The cause was tried by the court. Several of its rulings are the subjects of exceptions that will be noted, with other material matters, in the progress of the opinion of the court.

The plaintiff was examined on his own behalf as a witness and his testimony (referred to in the opinion) was as follows: William Orr, the plaintiff, called in his own behalf, being duly sworn, testified as follows:

DIRECT EXAMINATION.

Questions by Mr. White: "Q. You are the plaintiff in this case? A. Yes, sir."

Mr. Brown: "We object to Mr. Orr's being permitted to testify here in the case at all. He is the opposite party, and the pleadings show that Mr. Rode is dead. We think he is an incompetent witness."

The court: "The objection is overruled."

To which ruling defendants then and there excepted.

"Q. Where do you live? A. I live in Maysville, Missouri.

"Q. How long have you lived there? A. I come there in 1854.

"Q. Been living there ever since? A. Yes, sir; close to there. I don't live in town all the time, but I live there and around there.

"Q. Lived there in 1867? A. Yes, sir.

"Q. Were you acquainted with J. W. Strong? A. Yes, sir.

"Q. State, Mr. Orr, the circumstances which led to your making this loan in question, fully. A. Well, sir, Mr. Strong came down there to court and asked me if I had any money to lend. 'Well,' says I, 'I don't know how.' He found out I had some money here in Mr. Beattie's bank, and he called my attention to it, and told me that it might as well be drawing me interest as to be laying there. I told him I did not know whether I cared about lending it, or not. He insisted...

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