Barrett v. Davis
| Decision Date | 27 May 1891 |
| Citation | 16 S.W. 377,104 Mo. 549 |
| Parties | Barrett et al., Appellants, v. Davis et al |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. Charles W. Sloan, Judge.
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 holders 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 twenty 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 toward 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:
The other facts essential to an understanding of the case appear in the opinion.
Affirmed.
S. P. Sparks and A. B. Logan for appellants.
(1) The deed of trust possessed no validity for the reason that the statute was not complied with in taking the acknowledgment of Mrs. Barrett. Belo v. Mayes, 79 Mo. 67; Wannell v. Kem, 57 Mo. 480; Steffen v. Bauer, 70 Mo. 399; Sharpe v. McPike, 63 Mo. 300; Clarke v. Edwards, 75 Mo. 87. The finding of the court on that issue raised by the first count in the petition was clearly against the weight of the evidence. This being a cause of equitable cognizance, the court will examine the testimony to ascertain that fact. (2) Where the wife mortgages her real estate to secure the debt of the husband she occupies the relation of surety to him and can avail herself of all the beneficial rights and remedies as any other surety. Wilcox v. Todd, 64 Mo. 388. (3) An extension of time of payment of a debt to a principal without the consent of the surety discharges the obligation of the surety. Ins. Co. v. Houck, 83 Mo. 21; Ins. Co. v. Houck, 71 Mo. 128. First. There is not a scintilla of evidence in this record tending to show knowledge, much less consent, of Mrs. Barrett, to support the burden resting upon defendants under their plea of ratification. Second. In this extremity they are driven to rely solely upon the authority of Sparks as her attorney to bind her to the extension. (4) An attorney employed in the usual way to conduct a suit has in general no authority to enter into a compromise without the sanction, expressed or implied, of his client. Webb v. Grumley, 48 Mo. 562; Walden v. Bolton, 55 Mo. 405; Spears v. Ledergerber, 56 Mo. 465; Semple v. Atkinson, 64 Mo. 504; Roberts v. Nelson, 22 Mo.App. 28; Melcher v. Bank, 85 Mo. 362; Bradley v. Welch, 100 Mo. 258; Halker v. Parker, 7 Cranch, 436; Vanderline v. Smith, 18 Mo.App. 55; see note to Mechem on Agency, secs. 809, 810. First. The presumptive authority of an attorney is not conclusive, but may be rebutted. Mechem on Agency, secs. 809, 810. Second. An attorney by virtue of his general employment in a cause has no authority to agree to an extension of time upon a demand. Lockhart v. Wyatt, 10 Ala. 231. (5) The plea of ratification was not made out by the defendants; it must be made with full knowledge of the transaction. It is the predicate of knowledge and acquiescence. The law will not presume aratification by the principal of the unauthorized acts of his agent. Express Co. v. Reno, 48 Mo. 264. (6) The court erred in allowing in evidence the insurance policy on the property taken out by her husband and, without her knowledge and consent, assigned as security to defendant Peck, in the face of the testimony of F. B. Hawes, agent, that it was done without her knowledge or consent; it was res inter alios acta. The acts of Sparks, her attorney, in subsequently dismissing the suit, having been done without her knowledge or consent, did not show, nor tend to show, the ratification on her part of his act outside of the case in agreeing to the extension of time. (7) The court erred in permitting the attorney, Geo. J. Davis, to detail confidential and privileged communications between himself and his client, E. P. Barrett, without Barrett's consent, and against the objection of plaintiff and E. P. Barrett. Leading art., 28 Cent. Law Jour. p. 539; leading art., 28 Am. Law Reg., Jan. 1889; 1 Thomp. Trials, secs. 295-297, 298-300; Wilson v. Godlove, 34 Mo. 337; Johnson v. Sullivan, 23 Mo. 470; Gray v. Fox, 43 Mo. 570; Davis v. Kline, 76 Mo. 410; R. S. 1879, sec. 4017; Cross v. Riggins, 50 Mo. 335. Davis' testimony was upon vital points in the case; for this error alone the decree should be reversed. (8) The court erred in permitting evidence tending to establish that a portion of the money furnished by Peck to Barrett was used to pay off a prior incumbrance on the premises. There was no issue to which it was relevant. The defendant in his answer did not seek to be subrogated to any rights by reason of such application, and could not have been had he sought it. Price v. Courtney, 87 Mo. 387; Wooldridge v. Scott, 69 Mo. 669. Especially was this evidence illegal, irrelevant, incompetent and prejudicial to plaintiff in the face of the other testimony showing that the debt which that incumbrance secured was that of her husband, E. P. Barrett, constituting her his surety, merely. (9) The finding and decree is without any support whatever in the evidence. The extension of time was such as to release her as surety, and it devolved on defendants on this state of facts to establish by some unequivocal act that Mrs. Barrett had ratified the unauthorized act of her attorney, Sparks.
J. W. Suddath and O. L. Houts for respondents.
The evidence shows without substantial conflict that plaintiff Susan P. Barrett had actual knowledge of the agreement of May 31, 1882, of extending the time of payment of the note, and as a party thereto, assented, and is bound by it. The trial court so found, and this court will defer somewhat to that finding. Her attorney had the right to consent to the agreement for her. Davis v. Hall, 90 Mo. 659; Semple v. Atkinson, 64 Mo. 504; Black v. Rogers, 75 Mo. 441; Holker v. Parker, 7 Cranch, 436; Weeks on Attorneys, sec. 330; Wharton on Agency, sec. 590, et seq. (2) With knowledge of the material facts, and with means of knowledge of all the facts, she permitted defendant Peck, relying on her action, to comply with the agreement in his part, complied on her own part and she is now estopped from denying her assent and repudiating the agreement to his injury. Seimers v. Kleeburg, 56 Mo. 196; McQuie v. Peay, 58 Mo. 56; Hord v. Taubman, 79 Mo. 101; Turner v. Shaw, 96 Mo. 22. (3) To release the deed of trust executed by Mrs. Barrett to secure the payment of the note of her husband, a valid contract must have been made, founded upon a sufficient consideration, extending the time of payment of the note for a definite time without her knowledge or consent. Ins. Co. v. Houck, 83 Mo. 21. (4) The testimony of the notary, W. C. Taylor, justified the finding of the court that the deed was properly acknowledged by Mrs. Barrett. Her own testimony left no doubt about it. She said she read it and made herself perfectly acquainted with its contents; that the notary asked her if she had done so and she told him she had. Drew v. Arnold, 85 Mo. 128. (5) It was as good as an equitable mortgage on her separate estate if not acknowledged by her, and cannot, therefore, be set aside. There was...
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