Berryman v. Becker
| Decision Date | 28 July 1913 |
| Citation | 158 S.W. 899,173 Mo.App. 346 |
| Parties | J. W. BERRYMAN, Trustee, HENRY SCHWANER, JAMES L. DALTON, GEORGE B. WHEELER and WILLIAM FERGUSON, Appellants, v. JAMES L. BECKER and THOMAS D. McCOWN, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. Jesse C. Sheppard Judge.
Judgment affirmed.
Phillips Lentz & Phillips for appellants.
(1) On its face the note had been barred by the statute for more than eleven years before suit was commenced. The burden is on the defendants to show such facts as will take the note out of the statute. Wood on Limitation, p. 225-6, sec. 98, and note. Biggs v. Roberts, 85 N.C. 451. (2) The indorsements on the back of the note, without proof of the fact of payment and when made, are insufficient to take the case out of the statute. Phillips v. Mahan, 52 Mo 199; Goddard v. Williamson, 72 Mo. 133; Haver v. Schwyhart, 39 Mo.App. 305; Briscoe v. Huff, 75 Mo.App. 290; Regan v. Williams, 88 Mo.App. 596; Crow v. Crow, 124 Mo.App. 128; Brown v. Carson, 132 Mo.App. 376; Regan v. Williams, 185 Mo. 631; Whitney v. Bigelow, 4 Pick. (Mass.) 110. (3) In this State there is no presumption that the indorsement of payment on a promissory note was made at the time it bears date. Smith v. Brinkley, 151 Mo.App. 494, 132 S.W. 302. (4) It is not sufficient to take the case out of the statute, that the claim should be proved or acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due and must be shown to relate to the particular debt sought to be revived by it. Clementson v. Williams, 8 Cranch (U.S.), 74; Thompson v. Peter, 12 Wheat. (U.S.) 567; Wood on Limitation, p. 147, note; 25 Cyc. 1330-1335. (5) The acknowledgment to be available to take the case out of the statute must be in writing, and the writing must contain a distinct and unequivocal acknowledgment of the debt or contain a promise to pay it. R. S. 1909, sec. 1909; Blackburn v. Jackson, 26 Mo. 310; Carder v. Primm, 60 Mo.App. 427; Munroe v. Harrington, 110 Mo.App. 512; Wells v. Hargrave, 117 Mo. 568; Carr's Adm'r v. Hurlbutt, 41 Mo. 267; Chambers v. Ruby, 47 Mo. 99; Kirkbride v. Gash, 34 Mo.App. 258. (6) A mortgage will be presumed to have been satisfied after the lapse of twenty years, nothing appearing to the contrary. Wilson v. Albert, 89 Mo. 541; Cape Girardeau Co. v. Harbison, 58 Mo. 96; Moreau v. Detchmendy, 18 Mo. 530; Wood on Limitation, sec. 172; Jones on Mortgages, sec. 1157. (7) An entry of release or satisfaction on the record is generally binding and beyond contradiction, as respects the rights of third persons dealing with the land without other notice than the record affords. 27 Cyc. 1418, 1419, and cases cited; Bristow v. Thackston, 187 Mo. 350; Cappelle v. Allen, 38 Mo. 222; Valle v. Iron Mountain Co., 27 Mo. 462.
Lew R. Thomason and S. L. Clark for respondents.
(1) An entry of satisfaction of a mortgage by a person not authorized to do so is an absolute nullity. Joerdens v. Schrimpf, 77 Mo. 383. (2) A party accepting a release of a mortgage, should first ascertain that the party making the release is the holder of the debt secured. Cummings v. Hurd, 49 Mo.App. 139; Brown v. Koffler, 131 Mo.App. 494. (3) The entry of the recorder fails to comply with the provisions of Secs. 4358 and 4360, R. S. 1899, and is not a full or partial satisfaction of said mortgage. A party is bound to pursue such information as the record discloses, and an examination of the record of the quitclaim deed would have shown, and did show, that but a small part of the lands were released from the lien of the mortgage deed. Chappel v. Allen, 38 Mo. 213; Brown v. Koffler, 133 Mo.App. 494; Lee v. Clark, 89 Mo. 559. (4) An indorsement on a promissory note is presumed to have been made at the time the indorsement bears date. Carter v. Carter, 44 Mo. 195; Smith v. Berry, 69 Mo. 142; Smith v. Zimmerman, 51 Mo.App. 519; McElvain v. Garrett, 84 Mo.App. 300. (5) A part payment of a debt, even though made after the bar of the Statute of Limitations has attached, has the effect of removing the bar of the Statute of Limitations and reviving the cause. Shannon v. Austin, 67 Mo. 485; Beck v. Hass, 111 Mo. 264; Humphreys v. Milling Co., 98 Mo. 542; Bender v. Markle, 37 Mo.App. 235. (6) A credit made by the holder of commercial paper at a time when the note is not barred, and when it was against his interest to have made the credit, is prima facie evidence of the payment, and the burden is upon the opposite party to show that no payment was made. Craig v. Callaway Co., 12 Mo. 95; County of Vernon v. Stewart, 64 Mo. 410; Clinton Co. v. Smith, 238 Mo. 118. (7) Where a party, to remove the bar of the Statute of Limitations, proves a general acknowledgment of the indebtedness in writing, the burden of proof is upon the opposite party to show that it related to a different indebtedness to the one in controversy. Boyds, Admrs., v. Hurlburt, 41 Mo. 264; Mastin v. Branham, 86 Mo. 643.
This is a suit for injunction whereby the plaintiffs as beneficiaries in a deed of trust on 360 acres of land in Butler county, Missouri, 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 plaintiff's 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 $ 1000, due one year after date. The mortgage bears date March 25, 1889, and was recorded shortly thereafter in Book 27, page 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 twenty-one 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 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 $ 1700, 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, page 290, and which plaintiffs claim is a full release of the same, is dated March 14, 1899, and conveys only forty acres of land, which forty 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, page 627, is dated March 26, 1900 (a later date than plaintiffs' deed of trust), and it also conveys only forty acres and this forty 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, Revised Statutes 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. 142.] 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 mortgage by the first quitclaim deed noted on the margin is shown, not only from the fact that this...
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