Busby v. Compton
| Decision Date | 08 May 1905 |
| Citation | 87 S.W. 109,112 Mo.App. 569 |
| Parties | S. A. BUSBY, Respondent, v. WILLIAM R. COMPTON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. P. C. Stepp, Judge.
Cause reversed.
Dysart & Mitchell and Hall & Hall for appellant.
(1) There was no evidence in this case to warrant a verdict for the plaintiff on the third count of plaintiff's petition. There was no pretense that the original contract between the plaintiff and defendant was changed and modified by the contract of March 27, 1902, except as to the method and time of payment. Taking these two contracts together, it is clear that the defendant had the right to retain the $ 200 out of the $ 8,000 loan, and hence the plaintiff had no valid right to recover the said $ 200 as claimed by the plaintiff on the third count, and the court should have so instructed, as prayed by the defendant. (2) The two contracts read in evidence of January 9, 1902, and on March 27, 1902, were for the court to construe, and it was error for the court to submit the said documents to be construed and interpreted by the jury. And, therefore, the plaintiff's instructions numbered 8 and 9, given for plaintiff, were palpably erroneous. It is well settled, and the doctrine is elementary, that written documents are to be construed by the court and not by the jury. (3) Under the pleadings and the evidence the trial court had no right to find for plaintiff on the first count of the petition, and to enter judgment of full satisfaction of the said deed of trust. This is not a suit for the possession of the $ 4,100 note, nor for a judgment that said note is fully paid. This is a suit by one of the mortgagors against one of several assignees of notes secured by the mortgage for a judgment of full release of the said mortgage as shown by the prayer to the first count of plaintiff's petition. The other assignees of the notes described in the said mortgage and the cestui que trust to whom plaintiff himself says he paid a portion of these notes and interest coupons, are not made parties to this proceeding, and this defendant and the trial court had only the statement of the plaintiff, that such notes and coupons were ever paid. O'Reilly v. Miller, 52 Mo. 212. (4) This defendant had no relation whatever with, or knowledge of the first note falling due under the said $ 5,200 deed of trust. He had no information as to its payment except what plaintiff claimed. This defendant was not satisfied with that information, and in April of 1902, he wrote the plaintiff that if he had paid such notes and had them in his possession that he must take the same to the recorder and have the same cancelled and noted on the margin of the record. This he had a right to require. He had a right to statutory knowledge, not mere information. Henson v Stever, 69 Mo.App. 139; R. S. 1899, secs. 4358, 4363; Marsh v. Railroad, 104 Mo.App. 577, and cases cited. (5) The plaintiff fails to make a case against the defendant for the penalty under sec. 4363, R. S. 1899. This statute giving a penalty is obviously penal in its nature and must be strictly construed. It cannot be extended by implication. Snow v. Bass, 174 Mo. 170; Crumbly v Bardon, 70 Wis. 387; 2 Pingrey on Mortgages, p. 1319 sec. 1205; Jarratt v. McCabe, 75 Ala. 325; Jones on Mortgages, sec. 992. In Snow v. Bass, supra, the court says "Statutes imposing penalties such as that provided in sec. 4363, supra, must be strictly construed, and when one proceeded against falls not within the letter of its terms, the penalty is not enforcible." Marsh v. Railroad, 104, Mo.App. 577. The defendant is not the assignee of the debt--the whole debt--secured by this deed of trust, but is the assignee only of a part thereof, and there is no claim that any notice was given to any one except this defendant.
Hubbell Bros. and Harber & Knight for respondent.
(1) The substantive law of this case is settled by Henry v. Orear, 104 Mo.App. 570; Verges v. Giboney, 47 Mo. 171; Ewing v. Shelton, 34 Mo. 521; Campbell v. Seeley, 38 Mo.App. 302; Vallee v. Company, 27 Mo. 462; Dodson v. Clark, 49 Mo.App. 152. (2) A deed of trust is void after the payment of the debt secured by it. McNair v. Picotte, 33 Mo. 71; Winn v. Ins. Co., 83 Mo.App. 123. When a court of equity once acquires jurisdiction, it will grant complete relief. Duvall v. Tinsley, 54 Mo. 95.
The plaintiff's petition is in three counts. In the first, he alleges that himself and wife Mary J. Busby, executed and delivered their deed of trust to a trustee for the New England Loan & Trust Company upon a certain tract of land situated in Grundy county, Missouri, containing four hundred acres, to secure the payment to it of the sum of $ 5,200, said sum being represented by notes to said company as follows, viz: One for $ 200; three for $ 300 each and one for $ 4,100. Plaintiff alleges that he paid the $ 200 note to said loan and trust company and the three several notes for three hundred dollars each to said company, or its assigns; and that the defendant is the assignee of the $ 4,100 note, and that he has also paid it in full. He asks that said deed of trust be cancelled and that the lien on his land be released. The answer practically admits that all the notes described in said first count are paid off except the $ 4,100 note held by defendant, on which he claims there is $ 42 still due.
The court upon a hearing entered a decree cancelling the deed of trust mentioned and releasing the land from all claims purporting to be evidenced by said deed of trust. The plaintiff swore that he had paid all of said notes, except the one held by the defendant, and had them in his possession, but he did not produce them in court. He did not have them satisfied on the record as provided by section 4538, Revised Statutes 1899. It appeared in the evidence that all of the note for $ 4,100 held by defendant had been paid except $ 42.23 which he claims was due him for interest, less a credit for some small matters, leaving his claim of the amount still due on his note as interest in the sum of $ 38.38.
The claim originated in the following manner: On the 26th day of March, 1902, the plaintiff applied in writing to the defendant, a loan broker, to obtain for him a loan of $ 8,000 to be secured by deed of trust upon plaintiff's said farm. On the same day plaintiff and wife conveyed said land to a trustee to secure the payment of said sum of $ 8,000 which was represented by several notes due at different times bearing five per cent interest and payable to the defendant. At the same time another deed of trust was executed conveying the said land to a trustee to secure the payment...
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