Brown v. Barber

• Decision Date: 20 June 1912
• Citation: 148 S.W. 892,244 Mo. 138
• Parties: HENRY C. BROWN v. C. H. BARBER, Appellant
• Court: Missouri Supreme Court

148 S.W. 892

244 Mo. 138

HENRY C. BROWN v. C. H. BARBER, Appellant

Supreme Court of Missouri, Second Division

June 20, 1912

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

McCune Harding, Brown & Murphy and Wash Adams for appellant.

(1) The deed of trust through which appellant claims title was a first deed of trust, and as such had priority over the deed of trust under which respondent claimed title in his petition. Young v. Comm. Co., 158 Mo. 410; Truesdale v. Brennan, 153 Mo. 600; McDonald v Quick, 139 Mo. 498; Rogers v. Tucker, 94 Mo 346. (2) The sale under the first deed of trust cut out all subsequent encumbrances, including the deed of trust through which respondent in his petition claimed title, and the trustee's deed to appellant vested the title to the property in appellant free from the lien of the junior deed of trust. Stewart v. Perkins, 110 Mo. 668; Plum v. Mfg. Co., 89 Mo. 162. (3) There was no credible evidence that appellant agreed to pay the $ 500 note secured by the second deed of trust, or that he was to purchase the property subject to said second deed of trust. Cornett v. Bertlesmann, 61 Mo. 127; Paris v. Haley, 61 Mo. 459; Truesdale v. Brennan, 153 Mo. 605. (4) But even if there were such evidence it could not affect the unencumbered title acquired by appellant at the trustee's sale under the first deed of trust, because: (a) There was no consideration for any such agreement. (b) Being an agreement to pay the debt of another, or to cut down an unencumbered estate to an encumbered one, it was within the Statute of Frauds, and, therefore, not being in writing, was void. (c) Such evidence tended to vary and contradict the written recitals in the second deed of trust, which make the deed of trust through which appellant claims title a first lien on the property and therefore was not admissible. Benson v. Harrison, 39 Mo. 304; Houck v. Frisbie, 66 Mo.App. 19. (d) If there was such an agreement and if it had a consideration, plaintiff's remedy was at law in an action for the breach thereof. Benson v. Harrison, 39 Mo. 303; Bridge v. Tierman, 36 Mo. 439; Moberly v. Trenton, 181 Mo. 637.

John M. Cleary and F. C. Downey for respondent.

(1) The appeal to the equitable jurisdiction of the court was necessary in this case. The records did not disclose the flaw in the Barber title, while it did disclose the facts upon which Barber relies for the superiority of his title. Parol evidence was essential to show the superiority of Brown's title, as against or in explanation of the recitals of the records. Pomeroy's Eq. Jur. (3 Ed.), sec. 1399; Clark v. Ins. Co., 52 Mo. 276; Verdin v. St. Louis, 131 Mo. 112; Mason v. Beach, 87 Mo. 344; Gardner v. Terry, 99 Mo. 527; Turner v. Hunter, 225 Mo. 71; Jewett v. Boardman, 181 Mo. 656; Harrington v. Utterback, 57 Mo. 519. (2) The deed of trust through which appellant claims title was not a first deed of trust. Appellant bought the property subject to the deed of trust through which respondent afterwards obtained title. (a) Purchase money mortgages executed by the same grantor to the same grantee as a part of one transaction and filed for record at the same time, are equal in lien. Winn v. Inv. Co., 125 Mo. 542; Linville v. Savage, 58 Mo. 248; Biddle v. George, 58 N.H. 25; Gausen v. Tomlinson, 23 N.J.Eq. 405; Howard v. Chase, 104 Mass. 249; Green v. Warwick, 64 N.Y. 220; Jones on Mortgages (4 Ed.), sec. 607a. (b) One of two mortgages equal in lien may, by parol agreement, be subordinated to the other and such agreement will not be within the Statute of Frauds. Loewen v. Forsee, 137 Mo. 40; Linville v. Savage, 58 Mo. 248; Truesdale v. Brennan, 153 Mo. 604; Jones on Mortgages (4 Ed.), secs. 607-8; Vredenburg v. Burnet, 31 N.J.Eq. 229; 2 Pomeroy Eq. Jur. (3 Ed.), sec. 626; McCaslin v. Mfg. Co., 58 N.E. 67; Rogers v. Tucker, 94 Mo. 350; Ins. Co. v. White, 106 Ill. 67. (c) One taking with notice of an equity takes subject to that equity. Pomeroy's Eq. Jur. (3 Ed.), secs. 688, 689 and 730; Burch v. Ellames, 2 Anstruthers Eng. Ex. Rep. 427; Jennings v. Moore, 2 Vern. 609; Committee v. Lebus, 77 S.W. 180; Dunman v. Coleman, 67 Tex. 390; Freeman v. Moffitt, 119 Mo. 280; Abbe v. Justus, 60 Mo.App. 300; Eck v. Taylor, 58 Mo. 235. (3) The sale did not cut out the encumbrance created by the deed of trust through which respondent claims title. The mistake in the order of filing the instruments for record or in the selection of the deed of trust to be first foreclosed, gave the appellant no superior title. Mistake is a well settled ground for the interposition of equity. 2 Pomeroy's Eq. Jur. (3 Ed.), secs. 838, 849. (4) There was overwhelming evidence that appellant agreed to pay the interest and later on the principal of the note, through which respondent subsequently obtained title to the property. This evidence also proved conclusively that appellant believed he was buying the property under a second deed of trust. (5) The consideration for such an agreement was that respondent was not to bid at the sale and would accept interest on the other note waiving the default in that regard and thereby, as far as respondent was concerned permit appellant to buy the property at an amount only sufficient to pay the debt then under foreclosure. This agreement was fully executed by respondent. (6) The case was presented to the trial court upon the theory that it belonged in equity and it will be so considered upon appeal. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckemeir, 134 Mo. 380; Kosbuba v. Moeller, 137 Mo. 161; Laughlin v. Gerardi, 67 Mo.App. 372. (7) Upon appeal from the decree of a chancellor the fact that the trial court is in closer touch with the local conditions and with the witnesses, will, where there is conflict of evidence, cause the appellate court to respect the findings of the chancellor in matters of fact. McKenzie v. Donnell, 151 Mo. 460; Barrett v. Davis, 104 Mo. 563. And in such case the appellate court is not disposed to disturb the result reached. Jennings v. Todd, 118 Mo. 309. (8) If the judgment is right and sustained by the evidence, the theory upon which the result is reached, even if erroneous, will not be ground for reversal. R. S. 1909, sec. 2082; Gillespie v. Hendrew, 98 Mo.App. 622. (a) If the decree is for the right party and agreeable to equity, the case will not be reversed. Taylor v. Laremore, 19 Mo.App. 445; Coquard v. Pendergast, 35 Mo.App. 237; Allesheimer v. Mfg. Co., 44 Mo.App. 172.

KENNISH, J. Brown, P. J., and Ferriss, J., concur.

OPINION

KENNISH, J.

This is an action to quiet title, brought in the circuit court of Jackson county. The real estate in controversy is residence property situate in Kansas City and of the value of about $ 1500. The real parties in interest are the respondent, Harry C. Brown, plaintiff below, and appellant, C. H. Barber, one of the defendants against whom the suit was brought. The other defendants were occupying the property as tenants and are merely nominal parties to the suit. The case was tried by the court at the October term, 1907, and a decree entered in favor of the plaintiff, from which the defendant Barber alone appealed.

The facts are substantially as follows:

On the 30th day of September, 1902, Brown was the owner of the property in controversy, and on that day conveyed the same to one Hursig for the consideration of $ 1450. In payment of the purchase price the vendee executed to Brown three notes, two for $ 500 each, and one for $ 450. One of the notes for $ 500 was due in five years from date and was secured by a deed of trust on the property conveyed. The other note for $ 500, due in four years, and the note for $ 450, maturing first, were secured by another deed of trust on the same property. The note for $ 450 was paid before the facts involved in this suit arose, and therefore will not receive further notice. Hursig afterwards conveyed the property and received for his equity therein a note for $ 800, secured by a third deed of trust on the property conveyed, and that note and the deed of trust securing it were sold and assigned to defendant Barber for the consideration of $ 500, and were held and owned by him at the time of the foreclosure sale hereinafter mentioned. The first two deeds of trust above described were executed at the same time and as one transaction, but the deed securing the note for $ 500 due in four years, by recitals therein, referred to the other as "a prior deed of trust of $ 500 on said property," and therefore we shall refer to the latter as the first deed of trust and to the former as the second. The two deeds were filed for record in the office of the recorder together, but the second was marked filed one minute before the first. Both notes and trust deeds remained the property of Brown, and on the 6th day of July, 1906, default having been made in the payment of the interest on each note, Brown, in accordance with the terms of the deed, sold the property under the first trust deed. Brown and witness Peltzer, the latter a real estate man whom Brown had requested to accompany him to the sale and advise him, and the defendant Barber, were present at the sale. All of them agree in their testimony that immediately before the sale the subject of Brown's claim against the property and also that of Barber were discussed but they disagree as to what was said and as to the arrangement alleged to have been made. The testimony of Brown and Peltzer tended to prove that they talked with Barber concerning the sale about to be made, on the assumption and with the understanding that the property was to be sold subject to the lien of the deed of trust which had been first placed of record; that Brown desired to purchase the property and intended to bid therefor the...