Carter v. Holman
| Decision Date | 31 May 1875 |
| Citation | 60 Mo. 498 |
| Parties | LUCIEN E. CARTER, Appellant, v. MARCUS E. HOLMAN, FRANK O. PETTIS, THOMAS H. COLLINS and AMANDA CORBY, Respondents. |
| Court | Missouri Supreme Court |
Appeal from Worth Circuit Court.
L. E. Carter, for Appellant.
I. The agreement was properly recorded. (Wagn. Stat., 277, §§ 24, 25; 2 Sto. Eq. Jur., §§ 1018-20; 1 Hil. Mort., 4 ed., p. 648, et seq.)
II. It was in equity a mortgage.
III. The agreement is not void for uncertainty. If possible the intention of the parties as it appeared in the deed should govern its construction. .)
If the deed describes the property with sufficient certainty to show what was intended to be effected or conveyed, it is good. (Brown vs. Hayes, 21 How., 306; Fenwick vs. Gill, 38 Mo., 510; Hardy vs. Mathews, 38 Mo., 121; Rutherford Tracy, 48 Mo., 325; Cooley vs. Warren, 53 Mo., 166; Nelson vs. Broadhack 44 Mo., 596; Bruensmann vs. Carrol, 52 Mo., 313; 3 Wash. Real Prop., p. 344, 345, 346, 347, and authorities cited; Comm. vs. Roxbury, 9 Gray, 490; Schultz vs. Lindell, 40 Mo., 330, 355; Jennings vs. Brizeadine, 44 Mo., 335; Seaman vs. Hogeboom, 21 Barb., [S. C.] 398.)
The designation, together with the identification of the land aliunde was sufficient. (Doolittle vs. Blakesley, 4 Day, 265; Stanley vs. Green, 12 Cal., 148; Carson vs. Ray, 7 Jones L. [N. Cr.] 609; Abbott vs. Pike, 33 Me., 204; Cravens vs. Pettit, 16 Mo., 210; Walsh vs. Ringer, 2 Ham., 327; 4 Monr., 63; Clark vs. Powers, 45 Ill., 283; Dougherty vs. Purdy, 18 Ill., 207-8; Fitch vs. Gosser, 54 Mo., 267; Bates vs. Bower, 17 Mo., 550; Means vs. LaVergne, 50 Mo., 343; Hamilton vs. Doolittle, 37 Ill., 473; Prettyman vs. Walston, 34 Ill., 175; Jamaica vs. Chandler, 9 Allen, 159; Hart vs. Rector, 7 Mo., 531; Burnham vs. Banks, 45 Mo., 349; Stribler vs. Schreiber, 36 Vt., 345; Dodge vs. Nichols, 5 Allen, 548.)
IV. The requiting was notice. (1 Johns. Chy., 394.)
Murat Masterson, for Respondents.
I. The deed is void for uncertainty.
II. The instrument was not a conveyance of realty, nor such an instrument as the law authorizes to be put on record. (Wagn. Stat., 277, § 24; p. 275, § 14.)
The only question in this case depends on the construction of the following instrument, which was duly acknowledged, signed and recorded in Worth county, on the 1st day of December, 1869. There was a subsequent levy on the property alleged to have been described, and a subsequent deed of trust; and the only question is, whether the paper hereinafter stated constituted a mortgage or lien, so as to give it priority over subsequent creditors and purchasers. The paper in question was as follows:
“Know all men by these presents, that I, Marcus E. Holman, of Andrew county, am held and firmly bound unto Lucien E. Carter, of St. Joseph, in the penal sum of $500, for the payment of which, well and truly to be made, I bind myself, heirs, executors,” etc.
etc.
The plaintiff in his petition claims a lien on the south half of the south west quarter of section five, town sixty-five, range thirty-one, in Worth county, as being the land described in the above obligation.
The bill of exceptions states, that the plaintiff gave evidence tending to show that the land described in his petition was the land intended to be described in the bond or writing obligatory heretofore set out. The evidence is, however, not set out in the bill of exceptions.
The defendant then read the deposition of Mrs. Corby, which need not be noticed further, as it simply stated that she knew nothing whatever personally of the transaction, having an agent, named Culligan, to manage all her pecuniary affairs.
Culligan was then examined. His explanation of the matter is this: As agent for Mrs. Corby he had a deed of trust on Pettis' land in the bottom in Buchanan county, for $850. Pettis and Holman were about to exchange lands, and Pettis being unable to pay off the mortgage on his land in Buchanan, proposed to Culligan to relieve his land in Buchanan of this lien, and take in lieu thereof a mortgage on the land in Worth county, which he understood to be the south half of the south west quarter of section five, township sixty-five, range 31, and the north half of the south half of lot No. 2, of the south west quarter of section seven, in the same township and range. The proposal of Pettis was agreed to, upon condition that the land in Worth county was free from incumbrance.
A few days afterwards Pettis came to the witness' office, stating that he had been up to Grant City to look at the land, and searched for incumbrances, and gave him a certificate which the bill of exceptions states is marked “A.,” but which is not in the record. This certificate, it may be inferred, was from the clerk of Worth county; but it is not copied, and, therefore as in the case of the plaintiff's evidence, leaves everything to conjecture.
It may be remarked here, that in cases tried by juries on instructions, or common law cases as they are usually termed, details of evidence are unnecessary, and therefore a mere statement of its tendency on either side is sufficient; but in chancery cases, where it is expected that the court will review the testimony, the evidence at large may be important.
The amount of the deposition of this witness was, that he had no knowledge of any incumbrance; he knew nothing of plaintiff's lien; he relied on the certificate above referred to, which he states was a certificate of the clerk of the county.
Holman, the defendant, lived in Buchanan county, about two miles south of St. Jo. He intended to give a lien on the east half of the north west quarter of section six, town. sixty-five, range thirty-one. He had no intention of giving a mortgage on what he calls his home place; that he afterwards sold that to Pettis. The reasons for this are explained, but immaterial. There was no house on this land, but part of it was cleared. He brought a written line from the clerk of the court of Worth county, stating that he had examined the books in Worth county, and found the Worth county land clear of incumbrance. He claimed two eighty acre tracts and one twenty acre tract, all derived from different sources.
Upon the testimony the court decided that the instrument of writing sued on, in itself, was not a mortgage or lien in law or equity, except perhaps as against Holman, and that the filing thereof and recording the same imparted no notice to defendants, nor to any subsequent purchaser of any incumbrance; that said bond was not a conveyance or such an instrument as was authorized to be recorded. And the court gave final judgment for the defendants.
The doctrine of equitable mortgages, or liens arising from agreements or implied from a deposit of title deeds, is one of the creations of courts of equity which it is difficult to define or explain. It seems to be settled, however, that an agreement in writing to give a mortgage, will create a lien on the property specified in the agreement, as against general creditors.
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