Curle's Heirs & Adm'r v. Eddy

• Decision Date: 31 October 1856
• Citation: 24 Mo. 117
• Parties: CURLE'S HEIRS AND ADMINISTRATOR, Respondents, v. EDDY et al., Appellants.
• Court: Missouri Supreme Court

24 Mo. 117

CURLE'S HEIRS AND ADMINISTRATOR, Respondents,

v.EDDY et al., Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. An oral agreement to the effect that real estate, the title to which had been previously taken as a security, should stand as a security for further advances, is within the statute of frauds, and consequently void.

Appeal from St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Todd and Krum & Harding, for appellants.

I. Oral evidence is admissible to show that a title to real estate, vested by terms absolute, is, nevertheless, held as a mere security, or in mortgage. (1 Hilliard on Mort., Ch. 3, p. 29, and following; Robertson v. Brant, 16 Mo. 142; 1 Wend. 436 and 437 and cases there cited; Adams' Eq. 111, 112, side pages, and notes.)

II. When it appears that a title to property is taken in the first instance as a security for a particular debt, if other indebtedness is afterwards created by credits given by the same creditor to the same debtor, oral testimony is not only admissible to show an agreement between the parties that the title to the property may be also held for a security for this indebtedness, but equity will presume such an agreement without express evidence thereof. (15 Mass. 406, 415; 2 J. C. 308, 309; 5 J. C. 326, 327; 6 J. C. 429; 7 Cranch, 34; 1 Hilliard on Mortgages, 211, 212, 213; also see 2 Sandf. Ch. R. 912, 913.)

III. The fact that the title is vested in the first instance in more than one person, as a security for a debt in behalf of them all, should not in equity deprive either of them of the benefit of the title as a security for further credits given by one of them alone, or jointly with another, to the debtor. For the best and true reason for the presumption asserted in the last proposition is, that the taking of security in the first instance for the first credit was owing to an unwillingness to credit the debtor without collateral security, and, therefore, it is not to be supposed that future credits would be given (the security being still retained), without a rightful reliance upon the same security for the subsequent credits. Hence, for the like reason, it should not be supposed that one of the parties holding the title would alone, or with another person, give further credits, unless it was understood with the debtor that these subsequent credits should be protected by the security still retained. But when such future credits should be between only one of the parties holding the title for the first debt, belonging to them all, or such one with others and the debtor, such future credits would only have a right to the security subordinate to the first.

IV. But if the case last supposed could not have the benefit of the presumption, yet it would be competent for these new creditors and the debtor to agree with the holders of the title, that the title might continue to be held by them as a security for these subsequent credits. Of this there can be no question; for as the debtor (if he had the title in himself) could convey it to secure such subsequent credits, he could agree, effectually, that the title, already vested in one of these new creditors and another person, he not objecting, but agreeing to it, might be held and retained as a security for these new credits, and such an agreement could be proved by parol, as already shown; and this is exactly the case made by the answer, and which the court below struck out. The court will observe in this case that the title was vested in these defendants by an absolute deed at the time Curle made the verbal agreement that they should hold it as security for credits given to Curle by Beach & Eddy. (Adams' Eq. 123, 124, 125, side pages.)

V. A party who seeks equity must do equity. This case presents itself as if it were between Curle himself and the defendants. It expressly alleges that the credits, to secure the payment of which the property is sought to be retained, were given, not only upon a reliance upon this property as a security therefor, but under the faith and confidence of an express agreement with Curle that it should be held as a security therefor. How, then, can equity aid in taking it away and giving it to Curle without a satisfaction of these credits? Such an act would not be equity, but iniquity. (15 Mass., before cited.)

Glover & Richardson and J. E. Munford, for respondents.

RYLAND, Judge, delivered the opinion of the court.

This is a suit by the heirs and administrator of Richmond J. Curle, deceased, against Joseph A. Eddy and another, to compel the defendants to convey to them title to a certain tract of land described in the petition, pursuant to their written agreement to that effect, upon the payment of certain moneys specified in the agreement.

The defendants answer and state that they and Richmond J. Curle made a joint purchase of the land, and that Curle, not being in funds, it was agreed that the defendants should advance the purchase money; that the title for Curle's interest should be conveyed to them as a security for the money advanced, and it was so conveyed under this oral contract; and that, at the same time, it was further orally agreed that the defendants should advance for Curle the money to pay taxes, costs, etc., and hold the title in security for these advances; which they aver they made, and which amount to $667. The answer also states that after the title was conveyed to the defendants, it was agreed orally between said Curle and John Scott, and Beach & Eddy and these defendants, that Beach & Eddy should advance to Curle & Scott goods, wares and merchandise for the purpose of carrying on their coal adventure; and that Curle proposed to Beach & Eddy and these defendants, that these defendants should hold the title of said Curle's part of the land, already conveyed to them, until the money or goods advanced to Curle & Scott by Beach & Eddy should be repaid to them; that Beach & Eddy advanced to Curle & Scott goods, wares and merchandise to a large amount; that Beach & Eddy sued the administrators of Curle and recovered judgment for a large amount--upwards of $8,400--and that this judgment is not satisfied, but the money is still due to the said Beach & Eddy--said Eddy being one of the defendants to this suit. The answer avers that said Curle always, up to the time of his death, verbally recognized and acknowledged the right of these defendants to hold the title to his share of said land until said advances were paid. The answer avers that Richmond J. Curle did not in his life-time fully pay and reimburse to these defendants the sum of $2,500, advanced by them for him, in order to pay the purchase money for the land. They say that there is justly due to these defendants the amount of money specified in the judgment in favor of Beach & Eddy, and also the amount for advances and costs and services rendered, amounting to $1,100 or $1,200.

The court struck out that part of the answer in relation to the advances made by Beach & Eddy to Curle & Scott.

There was a hearing and finding of facts--no verbal agreement found-- no finding as to the manner of acquiring the title by the defendants, except what appears from the writing. The court decreed title to be made upon the payment of $967, the amount allowed to defendants for advances and services, and from this part of the decree the plaintiffs bring the case here by writ of error; and the...