Coney v. Laird

• Decision Date: 23 January 1900
• Citation: 55 S.W. 96,153 Mo. 408
• Parties: CONEY, Plaintiff in Error, v. LAIRD, et al
• Court: Missouri Supreme Court

55 S.W. 96

153 Mo. 408

CONEY, Plaintiff in Error, v. LAIRD, et al

Supreme Court of Missouri, Second Division

January 23, 1900

Error to Benton Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

Wheeler & Burney, T. W. Harrison, L. H. Waters and Waters & Waters for plaintiff in error.

(1) The application of payments must be made to such debts as the debtor was legally bound to pay, and not to such as he was not legally bound to pay. Poindexter v. LaRoche, 7 Smed. & M. (Miss.) 699; Beck v. Hass, 31 Mo.App. 180. (2) The evidence shows the grossest kind of fraud and collusion, and that while it was advertised to be a public sale for cash yet in fact it was to be a private sale to Shirk, and all on time, excepting the interests, taxes and costs. Such a collusive arrangement would be a fraud upon the owner of the land, and would invalidate any sale made in pursuance thereof. Any collusion that would prevent or destroy competition would render the sale void. Any collusion that tends to destroy and prevent fair and impartial bidding will render the sale invalid. Rorer on Jud. Sales, secs. 107 108, 109, 346, 425, 638, 1036, 1057; Michaud v Girod, 4 How. 503; Underhill v. Courtland, 2d Johns Chy. 252; Gilbert v. Bank, 9 Paige, 649; Cohen v. Wagner, 6 Gill (Md.) 236; Cusey v. Hardin, 2 B. Mon. 407; Altaway v. Bank, 5 S.W. 16. (3) The court erred in not rendering judgment in favor of the plaintiff declaring the deed of trust of defendant W. S. Shirk, and the claim of defendant the Third National Bank of Sedalia, Mo., and each of them, void and of no effect. (a) The change made in the description which located the lands in Pettis county to Benton county, was such a material alteration as would render the instrument void. McIntyre v. Vette, 153 Pa. St. 350; Hollinsworth v. Holbrook, 80 Ia. 151; Catler v. Rose, 35 Ia. 456; Reeves v. Pierson, 23 Hun. (N. Y.) 185. (b) A material alteration of a mortgage after delivery destroys and annuls the instrument, and destroys the lien claimed under it. 2 Am. and Eng. Ency. of Law. 189; 1 Jones on Mortgages, sec. 94; Johnson v. Moore, 33 Kan. 90; Pereau v. Frederick, 17 Neb. 117; Moells v. Sherwood, 148 U.S. 21; Marcy v. Dunlap, 5 Lans. (N. Y.) 365; Oliver v. Hawley, 5 Neb. 439. (c) And the doctrine of subrogation can not be applied to relieve the party from the effects of his own wrongful act. Sheldon on Subrogation, sec. 44; Guckenheimer v. Angevine, 81 N.Y. 394; Railroad v. Soutler, 13 Wall. 517; Johnson v. Moore, 33 Kan. 98. (d) Any material alteration will void the instrument, no matter how pure the motive may have been in making it. Moore v. Hutchinson, 69 Mo. 429; German Bank v. Dunn, 62 Mo. 79; Evans v. Foreman, 60 Mo. 449; Haskell v. Champion, 30 Mo. 136; Bell v. Mahin, 69 Ia. 408; Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492. (4) The purchaser is protected in placing complete reliance on the record. The obligation of giving notice rests upon the party whose duty it is to give the notice. If his duty is imperfectly performed the consequences must fall on him and not on an innocent purchaser. Terril v. Andrew Co., 44 Mo. 309; Viele v. Judson, 82 N.Y. 32; Cook v. Travis, 22 Barb. 349; Marcey v. Dunlap, 5 Lansing, 365; Whalley v. Small, 25 Ia. 184; Transit Co. v. Sheedy, 103 Pa. St. 492; Person v. Frederich, 17 Neb. 117; Vaughn v. Tracy, 22 Mo. 415; Hoyt v. Jones, 31 Wis. 401; Green v. Township, 37 Wis. 449; Van Thornily v. Peters, 26 Oh. St. 471; Railroad v. Pettis, 26 Oh. St. 261; Barnard v. Campau, 29 Mich. 162; Calder v. Chapman, 52 Pa. St. 359; Owens v. Northrup, 30 Wis. 482; Colomer v. Morgan, 13 La. Ann. 202. (5) The note described in the trust deed was for $ 7,000, and that note was afterwards renewed, and in equity the assertion by Shirk of a mortgage that he knew was for more than the debt, would be a fraud or an abandonment of his security. Henderson v. Henderson, 55 Mo. 555; Wallach v. Wylie, 28 Kan. 138; Mcdonald v. Gancet, 30 Kan. 693; Tompkins v. Wheeler, 16 Peters, 118; Winstead v. Hulme, 32 Kan. 629; Horton v. Dillian, 21 Minn. 187; Russell v. Winnie, 37 N.Y. 59; Rich v. Leoy, 16 Md. 74; Burnham v. Dunn, 35 N.H. 557; Hickox v. Elliott, 27 F. 830.

Wm. S. Shirk and Montgomery & Montgomery for defendants in error.

(1) The agreement between Shirk and the executors of the Reed estate was not a combination or conspiracy by which Shirk was to be permitted to manage the sale under the deed of trust on his own terms and to "exclude the plaintiff." It was simply an arrangement by which the executors agreed that if Shirk became the highest and successful bidder at the sale they would accept from him such part of his bid as might be agreed upon in cash and would take his notes, secured by deed of trust, upon the land purchased, for the balance of his bid. Such an arrangement did not have any effect or tendency to depress or chill the sale or prevent competition or to hinder anyone from bidding. It was not inconsistent with the terms of the power to sell for cash. Mead v. McLaughlin, 42 Mo. 194; Snyder v. Railroad, 131 Mo. 578; 2 Jones on Mortg. sec. 1871; 2 Pingrey on Mortg. sec. 1382; Ballinger v. Bourland, 87 Ill. 516; Mahone v. Williams, 39 Ala. 215; Hubbard v. Jarrett, 23 Md. 75; Markey v. Langley, 92 U.S. 153; Bailey v. Ins. Co., 10 Allen, 286; Tortt v. Clayton, 109 Ill. 579; Thurlow v. Mackeson, L. R. 4 Q. B. 97; Cox v. Wheeler, 7 Paige, 248; Kennedy v. DeTrafford, 74 L. T. Rep. 599; s. c. 76 L. T. Rep. 426. (2) The agreement between Shirk and the executors was exactly such an arrangement as the plaintiff endeavored to make for himself with the executors. Failing to obtain such an agreement it does not now lie in the mouth of the plaintiff to assert that the agreement would have prevented a fair sale of the property under the deed of trust or that it gave Shirk any improper advantage over him. (3) The timber was sold to Ayers long before plaintiff acquired any interest in the land, and it was especially excepted from the conveyance made to him by Newkirk, and the purchase price had been paid and applied in discharge of Melton's indebtedness to the executors of the Reed estate in the manner agreed to by all the persons having any interest in the land at the time, and the plaintiff can not complain that the whole of the price of the timber was not credited on the notes secured by the Chapman deed of trust to the executors. Melton, with the consent of Newkirk, had a right to direct application of the payment and having done so it can not now be disturbed. Beck v. Haas, 111 Mo. 268; Poulson v. Collier, 18 Mo.App. 583; Goetz v. Pul, 26 Mo.App. 641. (4) The plaintiff asserts title to the land in controversy under the decree of the United States court, which he sets out in his pleadings and proves by the evidence. This decree recognizes these two deeds of trust as valid and subsisting liens upon the property. The plaintiff by it is given relief as against the incumbrances created by these two deeds of trust in full recognition of their validity and he can not now be heard to deny that they are valid and subsisting liens. Fox v. Winder, 127 Mo. 511; Austin v. Loring, 63 Mo. 23; Pomeroy's Equity (2 Ed.), sec. 395; 1 Herman on Estoppel, p. 11; 1 Jones on Mortg. secs. 736, 744 and 1491; Crawford v. Harter, 22 Mo.App. 635; Howard v. Chase, 104 Mass. 251. (5) There was no alteration of the Shirk deed of trust to bring it within the principle relied upon by the plaintiff. The name of the county was changed before the deed of trust was signed and the other changes were made by the mortgagor in his own handwriting. Any changes made by the mortgagor, or with his knowledge and consent, even after execution by him, must be received in the same light as to the results consequent therefrom as though done with his own hands. Evans v. Foreman, 60 Mo. 452. (6) The lands are described in the Shirk deed of trust by congressional numbers, and the deed of trust states on its face that the lands thereby conveyed contain in all 9,525 acres, and were all of the lands purchased by me (Richard H. Melton, the mortgagor), of the estate of William Reed, deceased, and subject to another deed of trust given by said mortgagor to the executors of William Reed to secure the payment of two notes amounting to $ 12,702.28. It is referred to and identified in every conveyance through which the plaintiff claims title. The land is sufficiently identified and the deed of trust is a valid subsisting charge upon the land. Howe v. Williams, 51 Mo. 252; Bradshaw v. Bradbury, 64 Mo. 334; Long v. Wagoner, 47 Mo. 178; Welt v. Cutler, 38 Mich. 189; Devlin on Deeds, sec. 1016.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

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 money 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. Osburn, 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...