Coney v. Laird

• Decision Date: 23 December 1899
• Citation: 153 Mo. 408,55 S.W. 96
• Parties: CONEY v. LAIRD, Sheriff, et al.
• Court: Missouri Supreme Court

55 S.W. 96

153 Mo. 408

CONEY v. LAIRD, Sheriff, et al.

Supreme Court of Missouri, Division No. 2.

December 23, 1899.

DEEDS OF TRUST — ALTERATIONS — RECORD — DESCRIPTION — SALE BY TRUSTEES — VALIDITY — RENEWAL NOTES — ESTOPPEL.

1. Defendant purchased land from deceased's estate, and gave the executors a deed of trust to secure the purchase price. Afterwards certain timber on the land was sold by the defendant, the executors' consent to the sale being obtained on condition that the proceeds be applied on defendant's debt to deceased's estate. Held, in the absence of a specific agreement to the contrary, that the executors could apply the money received by them from the sale on indebtedness of defendant to deceased's estate other than that secured by the deed of trust, as against one acquiring a second lien after the sale of the timber.

2. An agreement between trustees, about to sell land under a deed of trust to secure the purchase price, and the holder of a second deed of trust on the land, provided that, if the holder of such second deed should be successful in bidding in the land at the sale for the full amount due the trustee, he need pay in cash only the interest due, taxes, and costs of sale, and give his note for the balance, secured by deed of trust on the land. Held, that the agreement was not collusive or fraudulent as to the owner of the land.

3. That the name of the county in a deed of trust had been altered, and the first name of one of the grantors had been inserted after the deed was drawn, was insufficient to render the deed void, where it was shown that the alteration and insertion were made either before the deed was signed, or with the knowledge and consent of the parties thereto.

4. That the record of a deed in which the name of the county had been altered did not show that the alteration had been made when the deed was recorded is insufficient to prove that the alteration had not been made, where the recorder made mistakes in recording other parts of the deed, and it was shown that such occurrences were not unusual with him.

5. A deed of trust on lands, given to secure notes for the purchase price, covers renewal notes.

6. A deed of trust on lands in P. county described the lands by sections, township, and range, and correctly named the county in which they were located, but the name of B. county, instead of P. county, appeared in the deed as recorded. Held, that the record sufficiently identified the lands covered by the deed, since the description by sections, township, and range showed that the lands were in P. county, and the deed was recorded in that county.

7. Where plaintiff in a suit in a federal court recognized a deed of trust on land purchased by him as a valid incumbrance on the land, in assigning breaches of the warranty contained in the deeds of the land to him, and derived the benefit thereof in a judgment in his favor rendered in that suit, he should not be permitted to deny the validity of the deed of trust in a suit to restrain a sale of the land.

Appeal from circuit court, Benton county; W. W. Wood, Judge.

Action by Patrick H. Coney against George W. Laird, sheriff, and others. From a judgment for defendants, and an order overruling his motion for a new trial, plaintiff appeals. Affirmed.

Wheeler & Burney, T. W. Harrison, L. H. Waters, and Waters & Waters, for appellant. W. S. Shirk and Montgomery & Montgomery, for respondents.

BURGESS, J.

This is an action to restrain a sale of lands under a deed of trust, and for an accounting. A temporary injunction was granted in the case, which, upon motion of defendants after answers filed, was dissolved, and judgment rendered for defendants. Plaintiff then filed his motion for a new trial, which was overruled, and he appeals.

Prior to the 20th day of November, 1889, the estate of William Reed, deceased, owned a large body of land in Benton county, containing about 9,526.81 acres. About that time the executors of said William Reed sold these lands to one Richard H. Melton, of Sedalia, for the sum of $19,053.42, of which $6,351.14 was paid in cash by said Melton, and for the balance of the purchase mony he executed two notes, for the sum of $6,351.14 each, payable to the order of Samuel Collins, William P. Murray, and F. C. Oslum, executors of the estate of said Reed; and, to secure their payment, Melton and his wife executed the deed of trust on the lands sold, the sale of which under the deed of trust was enjoined in this proceeding. Thomas C. Chapman was named as the trustee in the deed of trust. It provided that in the event of the death of the trustee, or his refusal to act, the then acting sheriff of Benton county might execute the trust. To obtain the money necessary to make the cash payment, Melton went to the defendant Shirk for assistance, who agreed to help him raise the money. They then arranged with the Third National Bank of Sedalia for the money, to secure the payment of which Melton executed his note, payable to the order of Shirk, for $7,000 (the note being made for a larger sum than the actual amount of money necessary for the purpose, in order to cover the payments of interest); and Shirk indorsed and delivered this note to the bank as collateral to secure their joint note, which they at that time executed and delivered to the bank, for the sum of $6,200, the amount requisite to make the payment. The note for $7,000 was secured by a second deed of trust on all the lands purchased, in which R. H. Moses was made trustee, and was recorded in the recorder's office of Benton county. It describes the land, as it appears of record, as in Pettis county, and as containing 9,525 acres, and "are all the lands purchased by me of the estate of William Reed, deceased." Thereafter, on the 23d of September, 1890, Melton made a warranty deed conveying these and other lands to the defendant Cyrus Newkirk. This deed was recorded in the recorder's office of Benton county on the 25th day of October, 1890. By this deed the lands thereby conveyed are described as the same lands as those bought from the Reed executors, and also conveyed by the Shirk deed of trust; and it recites upon its face that the land within conveyed is subject to the incumbrances then on the same, amounting to about $23,000. While this deed purports to be a warranty deed, it was in fact only a conveyance of the lands as security for certain indebtedness owing by Melton to Newkirk and to the First National Bank of Sedalia. On the 30th of March, 1892, Newkirk and Melton sold to one E. D. Ayers all of the timber suitable for ties, saw logs, and piling on about 3,350 acres of the land. The contract for the sale of the timber was also recorded in the recorder's office of Benton county. It is dated March 30, 1892, and recites that in consideration of $10,750, of which $7,000 was to be paid in cash, and $3,750 in 12 months, — "said sum to be paid on the indebtedness of said Melton to said Reed estate, and said Melton to get the written consent of said executors to this contract," — Ayers was to have five years in which to move the timber from the land, to which the executors gave their consent in writing April 6, 1892. When Shirk heard of this contract, he objected to its being consummated, because it would impair the security he held by virtue of his second mortgage; and an arrangement was then made by which Shirk should be paid $1,250 of the consideration for the sale of the timber to Ayers, which was done; and this sum was applied by Shirk as a credit upon Melton's indebtedness to him by reason of the note secured by the deed of trust to him, and which was deposited with the Third National Bank, but upon which note Shirk had paid the interest. At the time of this transaction, Melton was indebted to the executors of the Reed estate on other matters, outside of the indebtedness for the purchase of the land in controversy. This other indebtedness was for other land purchased by Melton of them, and for interest and taxes for which Melton was liable. About $4,000 of the money received from Ayers was applied by the executors of the Reed estate to discharge this other indebtedness, and the balance applied upon the debt secured by the deed of trust to Chapman. At this time the equity of redemption in this land stood in the name of the defendant Newkirk. The negotiations for the sale of the timber to Ayers were conducted through Newkirk, and the delivery of the deeds for the other land, the purchase money for which constituted the other indebtedness owed by Melton to the Reed executors, was also conducted through Newkirk, and it was with the full consent and approval of Newkirk that a part of the purchase money received from Ayers was applied by the Reed executors in discharge of this other indebtedness. Newkirk, in a letter to these executors dated April 19, 1892, advises the executors to ratify the sale to Ayers of this timber, and he transmits in that letter to these executors $5,000 in exchange, and Ayers' note for $3,725, and advises them that he thinks it would be entirely satisfactory to Melton for the executors to deduct the price of 30 acres of their land from this money. Collins, one of the executors who conducted this negotiation, testified that the money was so applied by Melton's direction, and that they never would have consented to the sale of the timber to Ayers if it had not been understood by them and by Melton that part of this purchase money for the timber was to be applied in discharge of Melton's other indebtedness to the executors. The executor, Osburn, testifies to the same facts. Shirk testified that it was well understood by Newkirk, Melton, the Third National Bank, and himself that, out of the moneys received by the Reed executors from the sale of the Ayers timber, they were first to discharge whatever indebtedness Melton owed them, other than that secured by the Chapman deed of trust, and the balance should be applied as a credit...