Emerson-Brantingham Implement Co. v. Rogers

• Decision Date: 05 March 1921
• Docket Number: No. 21791.,21791.
• Citation: 229 S.W. 779
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. ROGERS et al.
• Court: Missouri Supreme Court

229 S.W. 779

EMERSON-BRANTINGHAM IMPLEMENT CO. v. ROGERS et al.

No. 21791.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Rehearing Denied April 9, 1921.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by the Emerson-Brantingham Implement Company against Frank V. Rogers and others. Judgment for plaintiff for principal and interest on notes and attorney's fee and for foreclosure of chattel mortgage, but denying foreclosure of real estate mortgage. Plaintiff appeals from the denial for foreclosure of latter. Affirmed.

Ellis, Cook & Dietrich, of Kansas City, for appellant.

Lamar & Lamar, of Houston, and W. P. Carroll, of Raymondville, for respondents.

BROWN, C.

About June 15, 1910, the defendants Frank V. Rogers and M. H. Diedrich purchased from Geiser Manufacturing Company a steam traction engine and grain thresher for $2,150, for which they gave their interest-bearing notes of maturities extending over a period ending with November 1, 1913. To secure the payment of these they gave a chattel mortgage on the property so purchased, and also undertook to give two deeds of trust, one on 20 acres of land in Texas county belonging to Diedrich, and one on 80 acres in the same county belonging to Rogers, and described as the "W. ½ of the N. W. ¼ of section 35, township thirty-one WO north, range eight (8) west," subject to a mortgage to one Adams for $500. The machinery was delivered, and the notes and mortgages duly executed, with the exception that the Rogers deed of trust, instead of describing the land as above, described it as follows:

"All of the W. ½ of the N. W. ¼ of section thirty-five (35), township thirty (31) north, range eight (8) west."

These notes were all paid except the last three, maturing, respectively, November 1, 1912, September 1, 1913, and November 1, 1913, aggregating $737.50, upon which some payments had been made, when, on March 16, 1918, this suit was instituted in the Texas county circuit court to recover the amount still due on them and to foreclose the securities.

The notes bore interest at the rate of 6 per cent. per annum to maturity and 8 per cent. thereafter, and provided for an attorney's fee of 10 per cent. for collection by legal process. Before the institution of the suit the plaintiff corporation had become the owner and holder in due course. Several parties, including the appellant William F. Carroll, were made defendants upon the allegation of the petition that they owned or claimed some interest in the property included in the mortgages and deeds of trust, both real and personal. He appeared and answered, claiming to be the owner of the personal property mortgaged, and also of "the west half of the northwest quarter of section thirty-five (35), township thirty-one (31), range eight (8) west," by purchase and deed from Rogers and wife in March, 1917, and without knowledge, actual or constructive, of the existence of any mortgage or deed of trust on said land in favor of plaintiff or plaintiff's alleged assignor, and denies that plaintiff has any title to or lien on said land or any part thereof. Rogers answered, admitting the execution of the instruments described in the petition, and asks that plaintiff be put to strict proof of the amount, if any, due thereon. All new matter was put in issue by replication.

The petition, in the count for foreclosure of the Rogers deed of trust, contained the following paragraph:

"That in writing the said description in said deed of trust, by mistake and inadvertence from the words `thirty-one' defining the said township, the word ``one' was omitted, but the figures in parentheses immediately following were correctly written `(31),' and it was the plain and manifest intendment of the parties to write the description as first alleged, and the land as described was the very land the parties intended to convey for the purpose aforesaid by said deed of trust."

The count concludes as follows:

"That, default having been made in the payment of said notes and the indebtedness secured by said deed of trust, this plaintiff is entitled to have foreclosure of said lands under said deed of trust decreed by this court, which said deed of trust was thereafter duly filed for record and recorded in the registry of Texas county, Mo., and is herewith filed marked `Exhibit D.'"

The entire petition consists of eight counts. It asks for a "marshaling of all securities pertaining to the claims and demands of the respective parties," and that "this plaintiff have such other, further, or different relief in the premises as may be agreeable to equity and good conscience." There is nothing in the petition other than we have stated which refers in any manner to the fact that the Rogers mortgage does not contain a correct description of the lands intended to be conveyed or asks a reformation thereof.

The defendant Carroll claims the Rogers land under an ordinary quitclaim deed from Rogers and wife. In his testimony he states the consideration to be his services as attorney, and about $200 paid out in that capacity, but only specifies such services as had been rendered by him in connection with the matters involved in this suit during the two years previous to the trial in April, 1919.

The court rendered judgment for the amount of principal and interest and attorney's fees due on the notes sued on, aggregating $979.75, and for forclosure of the chattel mortgage, and denied the forclosure of the Rogers mortgage. The plaintiff has appealed to this court for error in its refusal to decree such foreclosure.

The seventh count of the petition states that on July 17, 1915, the defendant V. O. Rogers, having become interested in the machinery for which the original notes were given, and the three notes in suit being then unpaid, he and the defendant Frank V. Rogers (his father) executed three other notes to plaintiff, who was then the owner of the three unpaid original notes, securing them by a mortgage executed by the father, covering, with other property, a sawmill located on his farm. These new notes provided that when paid they should be credited on the corresponding notes of the original series.

1. The only error assigned by appellant is that—

"The trial court erred in denying to appellant, plaintiff, upon the pleadings and the proofs, reformation of the Rogers deed of trust by correction of the description of the land, and in denying to appellant a foreclosure of the lien of that deed of trust so reformed."

The respondent claims under a quitclaim deed dated March 14, 1917. While the record does not show the consideration which it recites, the respondent makes it clear in his testimony that it consisted of $200 paid out by him for Rogers, the grantor, in course of the performance of services by him as the attorney at law of Rogers in connection with the settlement of the liability of the latter in this...