5 S.W. 807 (Mo. 1887), Schradski v. Albright

Citation:5 S.W. 807, 93 Mo. 42
Opinion Judge:Norton, C. J.
Party Name:Schradski, Appellant, v. Albright et al
Attorney:Marcy K. Brown and W. H. Leavitt for appellant. John W. Wofford for respondents.
Court:Supreme Court of Missouri
 
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Page 807

5 S.W. 807 (Mo. 1887)

93 Mo. 42

Schradski, Appellant,

v.

Albright et al

Supreme Court of Missouri

October Term 1887

Appeal from Jackson Circuit Court. -- Hon. F. M. Black, Judge.

Affirmed.

Marcy K. Brown and W. H. Leavitt for appellant.

(1) The court should not have admitted the evidence offered by defendants to show that they were innocent purchasers without notice of plaintiff's equities. No equitable defence was pleaded. Northup v. Ins. Co., 47 Mo. 443; Greenway v. James, 34 Mo. 326; Newham v. Kenton, 79 Mo. 382. (2) So the facts constituting an equitable estoppel, testified to by the witness, King, were improperly admitted. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Weise v. Moore, 22 Mo.App. 530. (3) A defendant cannot introduce evidence to support a defence not set up in his answer. Weil v. Poston, 77 Mo. 284; Kuhn v. Weil, 73 Mo. 213; Irwin v. Childs, 28 Mo. 576; Winston v. Taylor, 28 Mo. 82. (4) A conveyance to secure an existing debt is a mortgage, whatever may be the form of the deed, or however absolute it may appear on its face. Oral evidence is competent to establish the fact of its being a security. O'Neill v. Capelle, 62 Mo. 202; Brant v. Robinson, 16 Mo. 129; Matson v. Capelle, 62 Mo. 235; Desloge v. Ranger, 7 Mo. 327. (5) The defendants holding under the Frankenthal conveyance, with its clause of release and satisfaction, cannot be innocent purchasers without notice. Mason v. Black, 87 Mo. 341; Orrick v. Dunham, 79 Mo. 174; Sensenderfer v. Kemp, 83 Mo. 581; Rhodes v. Outcalt, 48 Mo. 370. (6) A purchaser of land, with notice of prior equities, takes subject to such equities. Bronson v. Wanzer, 86 Mo. 408; Gibson v. Lair, 37 Mo. 188; Major v. Buckley, 51 Mo. 227. One taking under a quit-claim deed cannot claim to be a purchaser without notice. Campbell v. Laclede Gas Co., 84 Mo. 352; Mann v. Best, 62 Mo. 491; Stivers v. Horne, 62 Mo. 473. (7) The plaintiff was not guilty of laches.

John W. Wofford for respondents.

(1) The evidence of King, which is complained of, was properly admitted. It went to disprove the charge in plaintiff's petition that defendants bought with knowledge of the facts set up in the petition, and was, therefore, competent. Northup v. Ins. Co., 47 Mo. 435. (2) The defendants should have made and pleaded a tender. Cravens v. Moore, 62 Mo. 178. (3) The plaintiff, by standing by, and seeing people buying the property and building on it, and waiting over six years to assert his rights, was guilty of such laches as to bar his recovery. Anderson v. Fry, 18 Ill. 94; Milward v. Thanet, 5 Ves. 720; Rogers v. Sanders, 16 Me. 92; Patterson v. Maitz, 8 Watts, 374; Young v...

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