Barrett v. Davis

• Decision Date: 27 May 1891
• Citation: 16 S.W. 377,104 Mo. 549
• Parties: BARRETT et ux. v. DAVIS et al.
• Court: Missouri Supreme Court

16 S.W. 377

104 Mo. 549

BARRETT et ux. v. DAVIS et al.

Supreme Court of Missouri.

May 27, 1891.

ACKNOWLEDGMENT OF DEED — IMPEACHMENT — WIFE'S SEPARATE ESTATE — RELEASE OF SURETY — CONSTRUCTIVE NOTICE — AUTHORITY OF AGENT — RATIFICATION.

1. In Missouri, a certificate of acknowledgment of a conveyance of land may be avoided by evidence of its falsity; but there should be a clear preponderance of evidence to warrant such a finding.

2. Where the separate estate of a wife is mortgaged to secure her husband's note, her estate stands in the relation of surety to that debt.

3. A contract between debtor and creditor for an extension of time of payment for any definite period, without consent of the surety, discharges the latter.

4. Where such agreement is made upon condition that the surety assents thereto, it does not discharge the latter.

5. Such condition may be verbal and collateral to a written agreement.

6. Facts showing that a writing never acquired original vitality as a contract are admissible evidence.

7. A married woman, as to her separate estate, is, in equity, held competent to consent to an extension of a debt for which her estate stands as surety, or to ratify such an extension as indicated below.

8. Facts and circumstances which would naturally put a person of ordinary caution on an inquiry, reasonably leading to knowledge of the truth, are evidence from which that knowledge may be found.

9. A principal's long acquiescence (here, four and a half years) in, and enjoyment of, the fruits of a transaction had on her behalf, by an agent with assumed authority, held a ratification of the transaction.

10. In suits in equity the supreme court, on appeal, may discard evidence erroneously admitted in the trial court, without remanding for a new trial.

(Syllabus by Barclay, J.)

Reversing 15 S. W. Rep. 1010.

In banc. For opinion rendered in division No. 2, see 15 S. W. Rep. 1010.

Plaintiffs are husband and wife. The purpose of their present suit is to set aside a deed of trust in the nature of a mortgage, made in 1882, conveying Mrs. Barrett's land (her sole and separate property in equity) to secure a note of Mr. Barrett for $3,000 and interest. The defendants are the holder of the note secured and the trustee (with power of sale) named in the deed of trust. The petition alleges two grounds or causes of action. By the first it is asserted, in substance, that the incumbrance is not binding on Mrs. Barrett for two reasons — First, because of a false certificate of acknowledgment by the notary, it being claimed by plaintiffs that she was not examined separate and apart from her husband, and did not acknowledge that she executed the instrument freely, etc.; and, secondly, because of a forgery in the insertion of a description of 20 acres of other land than that originally described when the deed was delivered. The second cause of action proceeds on the theory that Mrs. Barrett occupied the attitude of a surety towards the debt secured by the deed of trust, and that the creditor released her and her land in consequence of a valid agreement by him with Mr. Barrett to extend the time for payment of his said debt, without her consent. The answer, in substance, denies the facts alleged in the first count; and, as to the second, asserts the full knowledge and consent of Mrs. Barrett to the extension of time mentioned, and states the circumstances thereof. The new matter was put in issue by a reply. A trial followed, resulting in a finding and decree for defendants. After the usual motions and other formal steps, plaintiffs appealed. The agreement for the extension of time, mentioned in the opinion of the court, is as follows: "This memoranda of agreement, made and entered into by and between Charles H. Peck and E. P. Barrett, witnesseth: That it is in consideration of the premises agreed that Charles H. Peck will take up a certain note of three thousand dollars, dated February 23, 1882, formerly held by him, and will grant an extension thereon to said Barrett of time of payment of one year, and said Peck agrees to forbear the enforcement of the deed of trust and payment of said note for one year from February 23, 1883; and in consideration thereof the said Barrett agrees to cause to be dismissed a suit now pending in the circuit court of Johnson county, Mo., entitled Edwin P. Barrett et al. vs. Geo. J. Davis et al., and to pay the costs thereon, amounting to sixty-six dollars and ten cents; and it is agreed that Frank J. Bowman may and shall pay, and cause to be paid, such moneys as may come into his hands from D. C. Thatcher and Charles P. Chouteau belonging to said Barrett, to said Charles H. Peck, to be applied upon said note until the same is fully paid. Witness our hands this 31st day of May, 1883. CHARLES H. PECK. E. P. BARRETT. I assent to the within for Mrs. Susan P. Barrett. S. P. SPARKS, her Attorney. I agree to the terms of the within, as far as I am concerned therein. FRANK J. BOWMAN." The other facts essential to an understanding of the case appear in the opinion.

S. P. Sparks and A. B. Logan, for appellants. J. W. Suddath and O. L. Houts, for respondents.

BARCLAY, J.

This being a cause of equitable cognizance, it has been necessary to review the facts disclosed by the record of the trial.

1. As to the first count, there was some evidence, chiefly by Mrs. Barrett, tending to contradict the essential facts recited in the certificate of acknowledgment. On the other hand, the notary gave a circumstantial and clear account of the transaction just as he described it officially. In our state, in view of the obvious meaning of the statute on this subject, the courts have felt constrained to hold that such certificates may be avoided by parol evidence showing their falsity. Mays v. Pryce, (1888,) 95 Mo. 603, 8 S. W. Rep. 731; Pierce v. Georger, (Mo., 1891) 15 S. W. Rep. 848. That construction has been too long accepted as settled law to require re-examination now. But, in applying it, in view of the recognized presumption of correctness attaching to the acts of public officials, we are of opinion that there should be a clear and decided preponderance of evidence to warrant discarding as false any such certificate. Without reviewing the evidence in detail, it is enough to say that we find no such preponderance here. We find equally untenable the position of plaintiffs in regard to the alleged interpolation in the instrument (after its delivery) of a description of 20 acres of land additional to that admittedly inserted therein. It was conceded by plaintiffs at the trial that, on the face of the deed of trust, no trace appeared of any erasure or interpolation. It further was shown that the deed was written in St. Louis, by an attorney unacquainted with the locality of the land, (Johnson county,) who was furnished the description by Mr. Barrett at the time the latter made the loan. Mr. Barrett testified that the description of the 20 acres was not in the deed when it was read to him, and that the only land agreed to be incumbered was his wife's homestead in West Holden, Mo. The draughtsman of the deed and another witness (not a party to this litigation) testified that it was first written as it now reads. The circumstances of the making of the loan were stated, and, from all the evidence to this point, it seems to us clear that there has been no change in the instrument since its execution. On both of the foregoing points we perceive no ground to reverse the finding of the trial court in favor of defendants.

2. As to the second count, it may now be assumed as settled law that the attitude of Mrs. Barrett towards the debt of her husband, secured by the incumbrance on her sole and separate estate, was that of a surety. It may likewise be assumed that Mr. Peck was the creditor when the writing of May 31, 1883, was executed, though, according to the recitals in it, his position was somewhat different. He had been the original lender of the funds on the note of Mr. Barrett, secured as stated, but had transferred the paper to other hands. On the date last named, the note was overdue, and the land had been advertised for sale to satisfy the debt. January 26, 1883, the present plaintiffs had brought a suit in equity, which was then pending in the Johnson county circuit court against the same defendants as now, to set aside the incumbrance in question on grounds substantially identical with those appearing in the first part of their petition in this case. Their bill was resisted, and the cause was triable the 2d Monday of June ensuing, 1883. In this situation of affairs, Messrs Peck, Barrett, Bowman, and Sparks met in St. Louis, May 31, 1883, and the writing, recited fully in the accompanying statement, was signed. Mr. Bowman was then the attorney of Mr. Barrett in litigation between the latter and Messrs. Chouteau and Thatcher. Mr. Sparks was the attorney of Mr. and Mrs. Barrett in the suit to set aside the...