Berryman v. Becker

• Decision Date: 07 July 1913
• Citation: 158 S.W. 899
• Parties: BERRYMAN et al. v. BECKER et al.
• Court: Missouri Court of Appeals

158 S.W. 899

BERRYMAN et al. v. BECKER et al.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. MORTGAGES (§ 154) — PRIORITIES — BONA FIDE PURCHASERS — RELEASE.

Where the marginal entries on the record of a mortgage referring to deeds of quitclaim, actually releasing only a part of the land from the mortgage, were not made until after a subsequent mortgage of the balance of the property had been made, the subsequent mortgagee was not entitled to priority on the theory that the entire prior mortgage was released as disclosed by the entries.

2. MORTGAGES (§ 309) — BONA FIDE PURCHASERS — RELEASE — MISTAKE OF RECORDER — EFFECT.

The making by the recorder of an unauthorized or incorrect notation of release on the record of a mortgage cannot prejudice the rights of the owner of the debt secured thereby.

3. MORTGAGES (§ 154) — SUBSEQUENT MORTGAGES — NOTICE.

One dealing with land incumbered by a mortgage must follow up the information suggested by a marginal entry on the record of the mortgage and look at the contents of quitclaim deeds referred to, and, where he takes a mortgage without doing so, his mortgage is inferior to the prior mortgage.

4. LIMITATION OF ACTIONS (§ 195) — BURDEN OF PROOF.

A note, after more than ten years from its maturity, is prima facie barred by the ten years' statute of limitations, and the burden to show the facts removing the bar of the statute is on the party seeking to recover on the note.

5. LIMITATION OF ACTIONS (§ 195) — PARTIAL PAYMENTS — EVIDENCE.

There is no presumption that an indorsement of payment on a note was made at the time it bears date, but to take a note out of the statute of limitations it is necessary to adduce other evidence than the note with a credit thereon bearing a date apparently having that effect, and there must be proof that the credit indorsed thereon was actually made at a time when the note was not barred, or that payment was actually made by the maker at the time shown by the indorsement.

6. LIMITATION OF ACTIONS (§ 195) — PARTIAL PAYMENTS — EVIDENCE.

An indorsement on a note of a credit bearing date before a time the note is barred by limitations is against the interest of the holder and is prima facie evidence that a payment was made at that time, and in the absence of anything to the contrary the note is not barred, but there must be proof that the credit was in fact made at the date it bears.

7. LIMITATION OF ACTIONS (§ 163) — REMOVAL OF BAR — PARTIAL PAYMENT.

A part payment of a debt, though made after the bar of limitations has attached, removes the bar and revives the debt, but the revival cannot affect the rights of third persons attaching after the bar was complete and before the revival.

8. LIMITATION OF ACTIONS (§ 164) — REMOVAL OF BAR — PARTIAL PAYMENT.

Where a note secured by mortgage has become barred by limitations, and thereafter a valid lien in favor of a third person has attached to the land, neither part payment by the mortgagor nor written acknowledgment of the debt will revive the mortgage so as to affect the subsequent lien.

9. LIMITATION OF ACTIONS (§ 148) — ACKNOWLEDGMENT OF DEBT — EFFECT.

An acknowledgment of a debt in writing, by which the debtor acknowledges that he owes the debt and that it remains a subsisting obligation, is sufficient to take the case out of the statute of limitations.

10. LIMITATION OF ACTIONS (§ 195) — ACKNOWLEDGMENT OF DEBT — EFFECT.

Where an acknowledgment of a debt does not specify any particular debt or amount, the question whether the debt acknowledged is the one sued on is one of fact with the burden of proof on the one asserting that it is not.

11. LIMITATION OF ACTIONS (§ 197) — REMOVAL OF LIMITATIONS — PARTIAL PAYMENTS.

Evidence held to sustain a finding that a note secured by a mortgage was saved from the bar of limitations by partial payments thereon and by written acknowledgment of the debt prior to the note becoming barred by limitations.

12. LIMITATION OF ACTIONS (§ 163) — REMOVAL OF BAR OF LIMITATIONS — PARTIAL PAYMENTS.

Partial payments on a note toll the statute of limitations and extend the limitation period for ten years only.

13. LIMITATION OF ACTIONS (§ 164) — PARTIAL PAYMENTS — ACKNOWLEDGMENTS OF INDEBTEDNESS — EFFECT.

Where a note secured by a mortgage had not became barred by limitations at the time a subsequent mortgage lien attached, the mortgagor could further extend the statutory period by partial payments on the note or acknowledgment in writing of the indebtedness thereon without affecting a subsequent mortgage.

14. LIMITATION OF ACTIONS (§ 6) — NOTES — MORTGAGES — STATUTES.

A note and mortgage securing it, executed prior to Rev. St. 1909, § 1892, limiting the time within which suits may be brought to foreclose mortgages, are not affected thereby, and the note and mortgage remain so far distinct obligations

that the note may be barred by limitations and the mortgage continue in full force so as to support a foreclosure sale.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by J. W. Berryman, Trustee, and others against James L. Becker and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Phillips, Lentz & Phillips, of Poplar Bluff, for appellants. Lew R. Thomason and S. L. Clark, both of Poplar Bluff, for respondents.

STURGIS, J.

This is a suit for injunction whereby the plaintiffs, as beneficiaries in a deed of trust on 360 acres of land in Butler county, Mo., seek to restrain the defendants, having a like interest in a prior mortgage with power of sale on the same land and 120 acres in addition in the same tract, from foreclosing said prior mortgage, as said defendants were proceeding to do when this suit was filed. The court granted a temporary injunction but on final hearing dissolved the same and dismissed plaintiffs' bill.

The plaintiffs claim that defendants should not be allowed to sell the land in question under the prior mortgage for the reason that the debt secured thereby has been long since paid and the mortgage released; and further that said debt and mortgage are barred by the statute of limitations. The mortgage in question which defendants were proceeding to foreclose was given by Aaron Mast, then owner of this land and the common source of title, to James L. Becker to secure to him a note for $1,000, due one year after date. The mortgage bears date March 25, 1889, and was recorded shortly thereafter in Book 27, p. 147. This suit was commenced October 4, 1911, and the foreclosure of the mortgage had been commenced a few days earlier, so that at this time the note was more than 21 years past due. The record of this mortgage, when offered in evidence, contained on the margin these entries: "This deed of trust released by a quitclaim deed of release recorded in Book 49, at page 290." Also the following: "The within mortgage is released by quitclaim deed recorded in Book 49, at page 627, this 3d day of April, 1902. Ed. L. Abington, Recorder, by Rose B. Kennedy, D. R." The deed of trust on which plaintiffs as beneficiaries therein claim the right to enjoin a sale under said prior mortgage was executed by the said Aaron Mast to secure a note for $1,700; both note and mortgage bearing date of February 21, 1900, and recorded about the same date. The first quitclaim deed referred to in the marginal entry on the record of the mortgage in question as being recorded in Book 49, p. 290, and which plaintiffs claim is a full release of the same, is dated March 14, 1899, and conveys only 40 acres of land, which 40 acres is covered by the said prior mortgage to Becker but not by the deed of trust to plaintiffs. The other quitclaim deed referred to in said marginal entry as recorded in Book 49, p. 627, is dated March 26, 1900 (a later date than plaintiffs' deed of trust), and it also conveys only 40 acres, and this 40 acres is also covered by said prior mortgage but not by plaintiffs' deed of trust. Each of these quitclaim deeds contain substantially this recital: "This deed of quitclaim being made in release of and satisfaction for a certain deed of trust dated the fifteenth day of March, 1889, recorded in the deed records of Butler county aforesaid, in Book 27 at page 147."

It will be noted that the marginal entry on the record of the mortgage in question referring to these deeds of quitclaim or release is dated April 3, 1902, so that it thus appears that these marginal entries were not on the margin of the record of this mortgage until some time after such quitclaim deeds of release were filed and some two years after the plaintiffs had taken and recorded their deed of trust. In view of these facts, there can be no basis for the claim made by plaintiffs that the entire mortgage and all the land covered therein had been released by either or both these quitclaim deeds or that plaintiffs relied on the marginal entry alone or in connection with the quitclaim deeds referred to as showing any such release. That the recorder failed to do his duty in respect to making a proper marginal notation on the record as to these quitclaim release deeds is evident in view of sections 2844 and 2847, R. S. 1909, providing for a cancellation of the note in case of full release and the presentation of the same to the recorder in case of a partial release and a notation of these facts upon the record. The effect of this incomplete marginal entry on the mortgage in question would probably be to destroy even the prima facie evidence of a release accorded to a release conforming to the statutory requirements. Brown v. Koffler, 133 Mo. App. 494, 113 S. W. 711; Lee v. Clark, 89 Mo. 553, 1 S. W. 42.

These authorities also show that the recorder by the mere making of an unauthorized or incorrect notation of release on the record of a mortgage or deed of trust cannot prejudice the rights of the owner of the note secured thereby.

That Becker, the mortgagor of the land, did not intend a full release of this...