Cox v. Esteb

Decision Date31 October 1878
PartiesCOX v. ESTEB et al., Appellants.
CourtMissouri Supreme Court

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

Donaldson & McLaughlin for appellants.

Crosby Johnson for respondent.

HENRY, J.

This was an action in the circuit court of Caldwell county to correct an alleged mistake in a mortgage executed by Wm. M. Esteb to the plaintiff, Cox. By this mortgage said Esteb intended to convey, in addition to fifteen acres correctly described therein, the east half of the northeast quarter of section 21, township 56, range 28, but by mistake conveyed the east half of the northeast quarter of section 20. This mortgage was executed and recorded on the 18th day of February, 1873. On the 3d day of January, 1874, said Wm. M. Esteb executed a mortgage to his father, his co-defendant, by which he conveyed to him the 80 acre tract which he intended to convey, and supposed he had conveyed, to Cox. The petition alleges that John M. Esteb, when he received his mortgage, knew that William had, by the mortgage to Cox, conveyed, or intended to convey, the same to plaintiff. That the alleged mistake did occur in the mortgage to Cox was admitted on the trial. Respondent contends that, as the mortgage to John M. Esteb was made to secure a pre-existing debt due him from Wm. M. Esteb, and said John M. Esteb advanced no new consideration nor released any security he held for the pre-existing debt, he cannot be regarded as a purchaser for a valuable consideration, and, therefore, Cox's mortgage is entitled to priority over his, whether he had notice or not, that Cox's mortgage was intended to embrace the land in controversy. It is a sufficient answer to this, that in the petition it is not alleged that John M. Esteb's was, or that Cox's was not, a pre-existing debt. The case made by the pleadings is the only one for consideration here, and, therefore, the only question is as to the sufficiency of the evidence to show that John M. Esteb had notice of the mistake as alleged in the petition.

Plaintiff introduced as a witness the defendant John M. Esteb, who testified that he knew Cox had a mortgage on William's land, but did not know what land or the amount of the debt; that he knew when William bought the land of Merchant, that he assumed the debt, or part of the debt, from Merchant to Cox; did not know the amount of the debt, but supposed it was not half as much as it appeared to be; that he got Thomas Butts, an attorney, to examine William's title, which he did, and reported to witness that he would be perfectly secure if a school mortgage upon the land were paid off; that he made no examination himself, because his eye-sight was very defective; that he never knew that Cox's mortgage was intended to embrace the land in controversy. Lemuel Dunn, for plaintiff, testified that shortly after the institution of this suit he had a conversation with John M. Esteb, in which Esteb asked why he was joined in the suit. Witness told him of the mistake in the Cox mortgage. Esteb said he did not know why he was sued, as he had not signed the note to Cox; said he was not able to pay the Cox debt; that he was not in a situation to pay it, and supposed he would have to lose his claim against William. Cox, the plaintiff, testified to a conversation he had with John M. Esteb sometime time after the execution of the mortgage to said Cox; that Esteb stated that he was opposed to the purchase by William of the Merchant land, on the ground that he did not think that William could ever pay the debt due plaintiff, and also the mortgage to the county. Witness did not state to John M. Esteb what lands his mortgage embraced. Wm. M. Esteb testified that ...

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27 cases
  • Mizell v. Osmon, 39376.
    • United States
    • Missouri Supreme Court
    • September 4, 1945
    ...Phillips v. Todd, 180 S.W. 1039; Smith Const. Co. v. Mullins, 198 Mo. App. 501, 201 S.W. 602; Vasquez v. Ewing, 24 Mo. 31; Cox v. Esteb, 68 Mo. 110. (23) There is no evidence in this case upon which the court can make a reasonable calculation as to the value of the premises without the impr......
  • Yarbrough v. W. A. Gage & Co.
    • United States
    • Missouri Supreme Court
    • April 19, 1934
    ...pleadings, as well as to the proof. McKnight v. Bright, 2 Mo. 510; Evans v. Gibson, 29 Mo. 223; Miltenberger v. Morrison, 39 Mo. 71; Cox v. Esteb, 68 Mo. 110; Newham v. Kenton, 79 Mo. 382; Spindle Hyde, 247 Mo. 48. Even though the prayer in the bill is for general relief, still the judgment......
  • First National Bank of Mauch Chunk v. Rohrer
    • United States
    • Missouri Supreme Court
    • March 23, 1897
    ...Sims, 77 Mo. 269; Baldwin v. Whaley, 78 Mo. 186; Newham v. Kenton, 79 Mo. 382; Ross v. Ross, 81 Mo. 84; White v. Rush, 58 Mo. 105; Cox v. Esteb, 68 Mo. 110. The doctrine of the cases cited by appellants can not avail them. In all the cases referred to in their brief, the parties, upon whose......
  • Mizell v. Osmon
    • United States
    • Missouri Supreme Court
    • September 4, 1945
    ...be denied. Phillips v. Todd, 180 S.W. 1039; Smith Const. Co. v. Mullins, 198 Mo.App. 501, 201 S.W. 602; Vasquez v. Ewing, 24 Mo. 31; Cox v. Esteb, 68 Mo. 110. (23) There is no in this case upon which the court can make a reasonable calculation as to the value of the premises without the imp......
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