BARCLAY, J., dissenting.
In banc. Appeal from circuit court, Washington county; JOHN L. THOMAS, Judge.
The plaintiffs, who are husband and wife, sought by this proceeding to have a certain warranty deed, executed by them in September, 1879, whereby lot 75, in Poplar Bluff, Mo., the property of the wife, was conveyed to Hill, & Nall Co., declared a mortgage. What the recitals or contents of this deed were does not appear, as the same was not offered in evidence. A contract was filed with the petition of plaintiffs, which was thought to convert the warranty deed into a mortgage, and is as follows: "This agreement, made the 2d day of September, 1879, by and between Nicholas Hach, of St. Louis, Mo., of the first part, and Hill, Nall & Co., of Fredericktown, Mo., of the second part, witnesses that the said party of the first part contracts and agrees, to and with the party of the second part, to convey to said party of the second part town lot No. 75, in the town of Poplar Bluff, Butler county, Mo., also all of the boilers, engines, saws, shafting, machinery, and fixtures connected with and belonging to or appertaining to the stave factory now on said lot; to transfer and deliver to said party of the second part the steam-boat Clara I., No. 2, now on Black river, which boat is to be used exclusively in connection with said factory; to give said party of the second part his best services and experience in running said factory, under the direction and control of said party of the second part; that the said party of the second part contracts and agrees with said party of the first part to complete said factory at and within reasonable cost and time; to equip the same for a stave and head factory; to keep an account of all money expended; and, on the expiration of this contract, to reconvey to said party of the first part said factory and town lot, and all machinery in said factory, together with said steam-boat, provided said party of the first part pays to said party of the second part all indebtedness due them for the completion of said factory, or on any other account whatever; to pay said party of the first part nine per cent. net on all staves, heading, or products of any kind made at said factory; and to give him a monthly statement of all sales of such products, and to pay him monthly his portion of such sales. If said party of the second part determines it is unprofitable to run said factory, and stops the same, or if said boat is lost, by sinking, explosion, or fire, said party of the first part to have or make no claim for damages. This contract to continue in force two years from date. Taxes on said realty, and insurance on said factory and machinery, to the extent of three thousand dollars, in favor of the party of the second part, to be paid by party of the first part; and, in the event of loss by fire, the insurance money to be used in rebuilding or refurnishing said factory, or, by mutual consent, to be used in adjusting the accounts of parties hereto; certain shafting, jointures, dry-house material now owned by party of the first part, and ready, in said factory, to be placed therein as soon as conveniently can be done. Witness our hands and seals at St. Louis, Missouri, this 2d day of September, 1879. NICHOLAS HACH. HILL, NALL & Co., per W. C. DINES. [Seal.] Witness: H. WALDSTEIN." This contract, as will have been seen, was made by the husband alone in his own name, and was unacknowledged and unrecorded. It would seem that it was not made at the same time, but that it was made subsequently to the time, the warranty deed was executed. Plaintiffs in their petition allege that the contract had its origin in certain adverse circumstances which had happened, to-wit: His stave factory, situated on the lot named, on which he had done business for years, unfortunately was partially burned down, and, not having sufficient funds of his own, he appealed to the defendants Hill, Nall & Co. for assistance; that said firm agreed to assist him, and, in consequence, the contract in question was made; that Hach, the husband, fully complied with the terms of his agreement, and paid the firm with which he contracted all that was owing them for money expended in the purchase of machinery and the repair of the factory; that they failed to comply with the contract on their part by giving a statement of sales of the products of the factory, and that on a settlement a large sum would be found due the husband. The prayer is for a decree declaring the warranty deed a mortgage, and that defendants be required to convey the property to the wife, Clara E. Hach, and for other and further relief.
The answer of the firm Hill, Nall & Co. was a general traverse of the allegations of the petition; an allegation that the husband, Hach, in consequence of the expenditures made by them under the contract, had become indebted to them in the sum of $10,000; that Hach failed to perform the conditions of the contract, but had abandoned the same; that they fully complied with the conditions of the contract on their part; and asking that, if the court should construe the warranty deed as a mortgage, then a foreclosure of the same be granted in order to pay said indebtedness of the husband. The answer of defendant Craig was to the effect that defendants had made a conveyance to him in September, 1883, for the benefit
of creditors, who, in consideration of such deed being made, extended the time for the collection of their debts for two years; that in 1884 defendant was also appointed receiver of said firm; that neither the defendant, nor the beneficiaries under the deed to him, had any notice of any infirmity in the title of Hill, Nall & Co.
At the close of the testimony the court entered the following decree. "Now, at this day, come the respective parties to this cause, and the court proceeding to render its finding, judgment, and decree upon the pleadings and evidence heretofore submitted to the court, the court doth find, from the pleadings and evidence, that the deed mentioned in the pleadings executed by plaintiffs to defendants Hill, Nall & Co., dated September 1, 1879, was intended by the parties thereto as a mortgage to secure the repayment of the latter of all sums of money that they might advance to said Hach to rebuild and equip the stave and heading factory mentioned in the pleadings, and for advances made to ship and sell the staves and headings made by the factory, and that plaintiff has a right to redeem the property described in said petition, as follows, to-wit: Lot No. 75 of the town of Poplar Bluff, except a small portion thereof which had been conveyed to the St. Louis, Iron Mountain & Southern Railway Company, by paying Hill, Nall & Co. whatever sum plaintiff may owe them on the account aforesaid; and the court further finds, from the pleadings and evidence, that Hill, Nall & Co. advanced to said Hach, under said agreement, sums of money for rebuilding and equipping the stave and heading factory, and on account of the business connected with the manufacture and sale of staves and heading made by said factory, amounting to thirty-two thousand six hundred and thirty-six dollars and five cents, ($32,636.05,) and that they realized from the sale of staves and heading twenty-two thousand eight hundred and thirty-six dollars and seventy-five cents, ($22,836.75,) and raised the further sum of four thousand six hundred and seventy-three dollars and forty-eight cents, ($4,673.48,) from said Hach, in cash from various sources, making twenty-seven thousand five hundred and ten dollars and twenty-three cents, ($27,510.23,) of credits said Hach is entitled to, leaving a balance of four thousand seven hundred and twenty-five dollars and seventy-two cents, ($4,725,72;) and that this balance was due them in September, 1881. The court further finds that Hill, Nall & Co. are entitled to interest on this balance from September 2, 1881, to this date, at the rate of six per cent. per annum, which amounts to fifteen hundred and eighty-five dollars and forty-six cents, ($1,585.46,) which, added to the $4,725.72, makes $6,311.18 now due defendants. It is therefore considered, adjudged, and decreed by the court that the equity of redemption in the premises and property heretofore described be foreclosed, and that defendants recover of plaintiffs the said sum of six thousand three hundred and eleven dollars and 18-100 dollars, ($6,311.18,) the debt aforesaid, found to be due, together with their costs to be levied on the real estate and property in said deed described as follows, viz.: Lot 75 of the town of Poplar Bluff, Missouri,...
