Cox v. Esteb
| Decision Date | 30 April 1884 |
| Parties | COX, Appellant, v. ESTEB, et al. |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.
REVERSED.
Crosby Johnson for appellant.
(1) A court of equity has power to correct mistakes in deeds and mortgages. Bresheban v. Price, 57 Mo. 442; Rayburn v. Deaver, 8 Mo. 104. And in the exercise of this jurisdiction it is not restricted to the parties to the deed, but may include purchasers with notice. Burnside v. Wayman, 49 Mo. 356; Young v. Coleman, 43 Mo. 179. (2) Notice is actual or constructive. Actual notice consists in a knowledge that a deed, though not recorded, was actually made; or of a knowledge of such facts and circumstances as would create in the mind of a man of ordinary circumspection an impression that others had acquired rights in the property. Speck v. Riggin, 40 Mo. 405; Rhodes v. Outcalt, 48 Mo. 367; Fellows v. Wise, 55 Mo. 413; Eck v. Hatcher, 58 Mo. 235. A purchaser will be deemed to have notice of facts which would have been ascertained by a man of ordinary prudence. Muldrow v. Robinson, 58 Mo. 331; Ridgeway v. Holliday, 59 Mo. 444. (3) One purchasing with notice of an equitable mortgage or an agreement to mortgage, takes subject to such incumbrance. Davis v. Clay, 2 Mo. 161; Farras v. Patton, 20 Mo. 81. (4) To constitute one an innocent purchaser, as against a prior unrecorded conveyance or an equitable title, he must have paid a valuable consideration. Maupin v. Emmons, 47 Mo. 304; Aubuchon v. Bender, 44 Mo. 560; Foster v. Holbert, 55 Mo. 22. The purchase must not only be for value, but the purchase money must be paid before notice. Paul v. Fulton, 25 Mo. 156; Rice v. Runce, 49 Mo. 231; Digby v. Jones, 67 Mo. 104; Wallace v. Wilson, 30 Mo. 335. He is not an innocent purchaser for value when the conveyance is taken in payment of a pre-existing debt. Willard's Eq., 256; Dickinson v. Tillinghast, 4 Paige 215; Webster v. Van Steenberg, 46 Barb. 211; Padgett v. Lawrence, 10 Paige 180; Cary v. White, 52 N. Y. 138; Lancey v. Stearns, 66 N. Y. 157; Haughwont v. Murphy, 21 N. J. Eq. 118; Johnson v. Graves, 27 Ark. 557; Orme v. Roberts, 33 Tex. 768; Hardin v. Harrington, 11 Bush. 367; Baldwin v. Sager, 70 Ill. 503. (5) The recital in the deed to William, that William was to pay the plaintiff's mortgage, was notice to all claiming under William of plaintiff's mortgage. 2 Washb. on Real Prop., 596; Scott v. Douglass, 7 Ohio 227; Carver v. Jackson, 4 Peters 85; Major v. Bukley, 5 Mo. 227.
C. S. McLaughlin for respondents.
This court cannot take into consideration any errors complained of in the bill of exceptions, for the reason that the bill was never filed in the case. The only filing is the indorsement by the clerk “filed,” giving date, etc., but no record was ever made of the filing by the clerk, as required by law. See Pope v. Thompson, 66 Mo. 661; Fulkerson v. Houts, 55 Mo. 301; Baker v. Loring, 65 Mo. 527; Johnson v. Hodges, 65 Mo. 589; Clark v. Bullock, 65 Mo. 535. When this case was in this court before, it was held there was no evidence to sustain plaintiff's cause of action. 68 Mo. 110. The evidence now is substantially the same as on the former trial. The second mortgage was not a mere voluntary conveyance. Swift v. Tysen, 16 Peters 1; Atkinson v. Brooks, 26 Vt. 574. Notice is either a question of law or fact. 1 Story's Eq., (Redf. Ed.) § 399. In this case it is a question of fact. This court will not reverse the finding of a trial court if there is any evidence to support it. Blumenthal v. Torini, 40 Mo. 159; Allen v. Richmond College, 41 Mo. 302; Faugman v. Hersy, 43 Mo. 122; McCune v. Esfort, 43 Mo. 134. Nor where the issues are tried by the court without a jury. 48 Mo. 43. To establish notice, the proof must be clear and unequivocal. McMechan v. Griffing, 3 Pickering 154. Suspicion of notice, though a strong suspicion, is not sufficient. Hine v. Dodd, 2 Atk. 275; 6 Barb. 60. Notice must be proved beyond all reasonable doubt. Rogers v. Wiley, 14 Ill. 65. It must be direct and positive. Fort v. Bunch, 6 Barb. 60; Jackson v. Given, 8 Johns. 107. Hearing reports or rumors is not notice. Colquitt v. Thomas, 8 Ga. 258. To constitute a binding notice, it must be given by one interested in the property, and in the course of the treaty for the purchase. 2 Sugd. 537, 538; Rogers v. Hukins, 14 Ga. 166. Flying reports are many times fables, and if admitted for sufficient notice, the inheritance of every man might easily be slandered. Wildgow v. Wayland Goulds, 147 Pl. 67. A conveyance in payment of a debt is not voluntary. 1 Story's Eq., § 433, and authorities there cited. A vendor's lien will not be enforced against a mortgage to secure a pre-existing debt. Bailey v. Greenleaf, 7 Wheat. 46; Bank v. Sayer, 8 Ala. 886; Adams v. Buchanan, 49 Mo. 64. There is a distinction between a general assignment for the benefit of creditors, and a particular assignment to specified creditors for their particular security. The former are considered mere volunteers. The latter as any other bona fide purchasers. 2 Story's Eq., (Redf. Ed.) §§ 1228, 1229; 4 Kent (12 Ed.) p. 154.
As we gather from the record, Wm. M. Esteb, in 1872, purchased a farm of 107 acres, in Caldwell county, Missouri, from a man named Merchant. The place was at that time under mortgages from Merchant to Caldwell county, and to the plaintiff Cox. The deed from Merchant to said Wm. Esteb, as appears by the record before us, contained the following clause:
At, or about the time, Wm. M. Esteb purchased the land from Merchant, desiring to obtain a further continuance of said loan, he agreed with the plaintiff, that if the plaintiff would release the deed of mortgage given on the land by Merchant, he would execute and deliver to plaintiff a new note and mortgage from himself, on all said lands, to secure the payment of said loan. Under, and in accordance with said agreement, said Wm. M. Esteb, on February 12th, 1873, delivered to plaintiff his said note for the sum of $1,612 and interest, and executed in lieu of the mortgage from Merchant, which was thereupon released and cancelled, his own mortgage to secure the payment of said note, which was designed and intended to convey the same lands described and conveyed by the Merchant deed of mortgage to Cox, and said deed from Merchant to Esteb, but by accident or mistake, the 80 acre tract thereof was described in said mortgage from Wm. Esteb to Cox, the plaintiff, as the east half of the northeast quarter of section 20, township 56, range 28, instead of by the correct numbers, to-wit, the east half of the northeast quarter of section 21, same township and range.
In January, 1874, Wm. M. Esteb executed to his father, John M. Esteb, a mortgage on the east half of the northeast quarter of section 21, township 56, range 28, to secure, we believe, the sum of $900. This, as will be remembered, is the same 80 acres that was in the deed from Merchant to Wm. M. Esteb, and in the mortgage from Merchant to Cox, and was omitted by mistake from the Mortgage from Wm. M. Esteb to plaintiff. The plaintiff brought this action against the defendants to correct this mistake in the description of the land in the mortgage from Wm. M. Esteb to him, and to have the lien thereof declared superior to the lien of the mortgage given to John M. Esteb. Upon the first trial of the cause the plaintiff obtained a judgment, which on appeal by defendant to this court, was reversed and the cause remanded. See 68 Mo. 110. On the second trial, the judgment was in favor of defendants, from which the plaintiff appealed.
Plaintiff has filed an amended petition in the cause, alleging, as was done in the original petition, that John M. Esteb had notice of said mistake in his mortgage, and further setting out the said purchase of the land by Wm. M. Esteb from said Merchant, and a description of the land in said deed, and, also, the clause therein to the effect that the land was subject to said mortgage to plaintiff, which said Esteb thereby assumed to pay off. And further charging that the consideration for the mortgage from Wm. M. Esteb to his father John M. Esteb, was a pre-existing debt, and, also, charging that Wm. Esteb, at the time he executed the deed of mortgage to the plaintiff, was not, and had never been the owner of the east half of the northeast quarter of section 20, and that J. M. Esteb, the father well knew that fact.
The defendant, Wm. M. Esteb, filed an answer. The separate answer of J. M. Esteb denied, generally and specifically the material allegations contained in the amended petition.
Upon the trial the plaintiff put in evidence said deed from Merchant to Wm. M. Esteb, dated December 10th, 1872, and recorded January 8th, 1873, under which Wm. M. Esteb acquired and held the land. Said deed contained a correct description of the 80 acre tract in controversy, as being situated in section 21, and a particular and correct description of the other land embraced in said Merchant's place, and therein conveyed. It may be further stated, in regard to the evidence, that it showed that Wm. M. Esteb never was the owner of the east half of the northeast quarter of section 20, or any other land in that section, which fact, it is conceded, was not in evidence on the former trial. Such other portions of the evidence, as we deem necessary or important, will be noticed in the proper connection, in the course and progress of this opinion.
The evidence discloses that John M. Esteb, the father, knew that the Merchant place which included the east half of the northeast quarter of section 21, the 80 acre tract in controversy was incumbered by the plaintiff's mortgage. Defendant claims, however, that said John M. Esteb, did not know the boundaries of the Merchant place, so purchased by his son, nor whether it extended over into section 20, or not, and that...
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