First Nat. Bank v. Kirby

• Decision Date: 02 March 1915
• Docket Number: No. 16835.,16835.
• Citation: 175 S.W. 926
• Parties: FIRST NAT. BANK OF STRONGHURST, ILL., v. KIRBY et ux.
• Court: Missouri Supreme Court

175 S.W. 926

FIRST NAT. BANK OF STRONGHURST, ILL., v. KIRBY et ux.

No. 16835.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Rehearing Denied April 1, 1915.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by the First National Bank of Stronghurst, Ill., against Charles W. Kirby and wife. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

F. H. McCullough, of Edina, for appellant. J. A. Cooley, of Kirksville, and J. W. Ennis, of Edina, for respondents.

BROWN, C.

This suit was instituted in the Knox county circuit court April 12, 1911, to foreclose a mortgage on 200 acres of land in that county to secure the payment of four promissory notes dated October 15, 1909, for the aggregate amount of $7,500, payable five years after date, "with interest thereon at the rate of 5½ per cent. per annum from date." The notes were given by the defendants, who are husband and wife, to Elmer E. Taylor, at Stronghurst, Ill., and by him immediately assigned to the plaintiff bank, for whose benefit they were taken, and at which they were payable. They grew out of a transaction by which the bank, for the purpose of securing an indebtedness evidenced by notes of the defendants, had consolidated them in the notes in suit with money advanced to pay off a prior incumbrance, so that this would constitute a first mortgage.

The land was held in fee by the defendants as tenants by the entirety. The mortgage bears even date with the notes, and conveys the land to Taylor, who is described in it "as trustee," and provides that the grantors should pay all taxes against the property and "keep the buildings thereon insured against damage by fire for the benefit of the owner of said debt for the period of this loan." It was conditioned that "if the said grantors or any one for them shall pay the debt and interest expressed in said notes when the same shall become due and payable, according to the tenor of said notes, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said grantor, but should said grantor fail or refuse to pay said debt, or interest or taxes, or insurance, or any part thereof, when any part thereof shall become due and payable, then the whole shall become due and payable and this deed shall remain in force," and that the said trustee, and in certain contingencies the sheriff of Knox county, might, at the request of the owner, proceed to sell the land in the manner provided.

The petition pleaded these provisions of the mortgage, and then alleged the breach of the condition as follows:

"Plaintiff further states that on the 15th day of October, 1910, there was due, on the four notes above described, the sum of $412.50 annual interest on the debt of $7,500 represented by said notes and secured by said deed of trust or mortgage deed, and that the defendants have entirely failed and refused and are now failing and refusing to pay the same, but have only paid, on said installment of interest, the sum of $70 on November 21, 1910, the sum of $75 on January 9, 1910, and the sum of $37.50 on January 14. 1911, in all the sum of $182.50 so paid by defendants on said installment of interest, due as aforesaid, on October 15, 1910, and leaving the balance still due and unpaid, on said installment, of $230; that defendants hue entirely failed and refused to keep the buildings on said real estate, above described, insured against damage by fire for the benefit of the owner of the said debt of $7,500 and interest so secured by said deed of trust or mortgage deed. And the plaintiff states that defendants have entirely failed and refused to pay the balance due on said installment of interest so due on said debt and entirely failed and refused to insure the buildings on said real property for the benefit of the owner of said debt, and that defendants have broken and failed to perform the conditions of said deed of trust or mortgage deed, and plaintiff now elects that said deed of trust or mortgage deed remain in force, and that the whole debt of $7,500 and all interest thereon remaining unpaid shall now become due and payable."

It also pleaded that, under the laws of Illinois, the interest was payable annually. The prayer was for the foreclosure of the mortgage and sale of the premises for the payment of the debt, interest, costs, and attorney fees agreed in the notes to be paid for their collection, and for general relief.

The abstract is silent as to the issue and service of summons or other notice of the institution of the suit.

Adda Kirby answered separately that, at the time the mortgage was signed, she was the wife of her codefendant; that they were then the owners by the entirety of the lands; that the loan was for the sole use of her husband, and that she received no part of the money advanced; that the deed was never acknowledged by her, nor was she ever asked to do so; that the money loaned by Taylor to her husband belonged to the plaintiff, and that the loan was made through Taylor to avoid the provision of the National Bank Act (Act June 3, 1864, c. 106, 13 Stat. 99), limiting the amount the bank might loan to one person to 10 per cent. upon its capital, which was only $35,000; that the plaintiff had no lawful authority to loan money upon Missouri lands as security, and that the mortgage was for these reasons void, and asked that the same be canceled.

The defendant Charles W. Kirby did not answer or otherwise plead to the petition. Upon the trial the undisputed evidence with respect to the acknowledgment of the deed was that on the evening of October 15, 1909, Mr. Taylor, plaintiff's cashier, went to the Kirby residence, which seems to have been in or near Stronghurst, in Illinois, where defendants signed the notes and mortgage, which Mr. Taylor then took back to the bank, gave the mortgage to Mr. McMillan, assistant cashier, who was a notary public, with the direction to take the acknowledgments of the parties thereto, and Mr. McMillan afterward, at a time not stated, returned the papers to Mr. Taylor with the acknowledgments of Charles W. Kirby and Adda Kirby indorsed thereon. Mr. McMillan, who occupied the same relation to the bank at the trial as when the papers were signed, said that he had no recollection of taking the acknowledgment, but said, when pressed for an answer, "My signature is on there and my seal, and I won't go back on it;" and, being further questioned, he said, "I stand by the certificate." Mr. Kirby left the same evening for Knox county, Mo., where he met Mr. Taylor when he came over to have the mortgage recorded, while Mrs. Kirby remained in Stronghurst. Both testified that they did not at any time acknowledge the instrument, nor did either of them see Mr. McMillan at the time of the transaction.

The plaintiff also introduced, without objection, the opinion of one of the Appellate Courts of Illinois (Kurz v. Suppiger, as reported in 18 Ill. App. 630), in which it was held that the interest clause in a note, reading, "With S. per cent. annual interest from date until paid," amounted to a promise to pay the interest annually. The only record entry of judgment mentioned in the abstract is copied therein as follows:

"And thereupon, during the same term, to wit, the regular December term, of said circuit court, after hearing all the evidence in the cause, and on the 22d day of December, 1911, the court rendered judgment and decree of foreclosure against the interest of the defendant Charles W. Kirby in and to all the lands described in the petition, but further adjudged and decreed, as to the interest of defendant Adda Kirby therein, as follows: `* * * That the officer or notary public, whose certificate of acknowledgment appears on said deed of trust or mortgage deed, did not take the acknowledgment of the defendants thereto, and that said deed of trust or mortgage deed was never acknowledged by said defendants, or either of them, * * *' and `that said deed of trust or mortgage deed is null and void and of no effect as to the interest of said Adda Kirby in and to all said real estate.'"

The plaintiff filed a motion for a new trial, setting up that the judgment on all issues should have been for plaintiff against both defendants, which was overruled, and it has taken this appeal.

1. Examining this record, we find it open to the fatal objection that, while the attack made by this appeal is founded exclusively upon the alleged error of the circuit court in giving judgment for the defendant Adda Kirby, there is in fact no such judgment. The entry affecting her is a finding that the mortgage sought to be foreclosed "is null and void" and of no effect as to the interest of said Adda Kirby in and to all said real estate. There are no wards used discharging her from the suit, or even giving her costs. That this finding does not constitute a final judgment from which an appeal may be taken is plain, both upon principle and authority of the previous adjudications of this court. In McCord's Adm'r v. McCord, 77 Mo. 166, 46 Am. Rep. 9, McCord was sued with others, and judgment was rendered against him, while the court found that his codefendants were not necessary parties. This court reversed the judgment and remanded the cause on that ground, with directions to enter judgment in favor of the plaintiff against McCord and to dismiss the suit as to his codefendants. In Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S. W. 586, three defendants out of ten demurred generally to the petition, which was held bad. None of the others having answered or otherwise pleaded, judgment was entered for all of them. This court held on plaintiff's appeal that, the cause not having been disposed of by final judgment as to the defendants not appearing, the appeal would not lie, and it was dismissed.

Nothing is more fundamental in this state than the rule that only a final judgment, which disposes of all ...