Foster v. Reynolds

• Citation: 38 Mo. 553
• Parties: JAMES T. FOSTER, Respondent, v. BENJAMIN F. REYNOLDS, Appellant.
• Decision Date: 31 October 1866
• Court: United States State Supreme Court of Missouri

38 Mo. 553

JAMES T. FOSTER, Respondent,

v.BENJAMIN F. REYNOLDS, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from Madison Circuit Court.

J. G. & J. A. Beal, for appellant.

I. The court below should have permitted the defendant to prove by parol evidence the object of the execution of the deed of trust; that the sum of $2,625, for payment of which the deed was given to secure, was intended by the parties to secure future advances and security for debts of Foster not exceeding the sum of $2,625.

“Mortgages may be given to secure future debts, advances and responsibilities; and when the deed recites the amount of a note for which the mortgage is given, parol evidence is admissible to show that it was intended to secure future advances or liabilities. And this security may be for future advances in the form of a mortgage for a specific sum sufficiently large to cover the amount of the floating debt intended to be secured”--Bk. of Utica v. French, 3 Barb. Ch. 293; Collins v. Carle, 13 Ills. 254; 1 Hill. on Mort. 212-13; 17 Mo. 58.

A mortgage taken to secure future advances is valid although it does not show upon its face the real character of the transaction--13 Ills. 254; 7 Ala. 143; 5 Binn. 585.

Where a bond and mortgage are actually given to secure a particular specified debt, it may be shown by parol evidence, that it was intended to cover a distinct and separate debt--3 Barb. Ch. 293.

II. The demurrer of appellant to the petition of respondent should have been sustained, because the petition fails to show why the respondent does not owe the mortgage note of $2,625. The facts should be stated as fully as required in the answer--R. C. 1855, p. 1229, § 3; 15 Mo. 628; 18 Mo. 383; 35 Mo. 172, 316.

If the debts were not secured by the mortgage as alleged by respondent in his petition, then there would be no such irreparable injury as will authorize a court of equity to interfere by injunction, as the sale would be void--R. C. 1855, p. 1248, § 4, & p. 1249, § 9; Sayre v. Tompkins, 23 Mo. 443; 32 Mo. 497; 19 Mo. 490.

Errors and informalities in the proceedings are released in an application for injunction--R. C. 1855, p. 1249, § 10. The notice by the trustee was merely informal and erroneous in stating a sale for anything else but the mortgage note. The debts mentioned in the notice of the trustee constitute the consideration of the mortgage note.

A mortgage may be made to secure the payment of money, the performance of a duty either existing at the time the conveyance is made, or to be created, or to arise in future--Brant v. Robertson, 16 Mo. 143; 1 Hill. on Mort., ch. 3, § 3, p. 52, 3d. ed.

III. A mortgage given to secure future advances may be taken for specific sum sufficient to cover the floating debt intended to be secured-- Hill. on Mort. ch. 12, § 46. Parol evidence was admissible to establish the fact, that the debts paid by appellant for respondent were in pursuance of and upon the faith of the mortgage (same authority). The holder of such a mortgage may advance upon it up to the sum specified, and be secure in his advances to the extent of such advance--Ibid.

The case of Curle's heirs v. Eddy, relied upon by respondent in the court below, in 24 Mo. 117, is not in point, nor doos it support the respondent's cause.

Emerson, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The respondent in this cause made application to the Circuit Court to enjoin the appellant from selling certain real estate under and by virtue of a mortgage. The petition stated that on the 23d day of June, 1860, the respondent conveyed certain real estate in trust to secure the payment of a certain note, described in the deed of mortgage for the sum of $2,625; that the appellant advertised the mortgaged property for sale on the 25th day of September, 1863, and in the notice stated that the mortgage was to secure the note therein described, and also any demands which might be paid by appellant as security or endorser for the respondent, and that payments as such security and endorser had been made amounting in the aggregate to up wards of $700. The petition then averred that the mortgage was not given to secure any debt which appellant might pay as security or endorser, and there was no such power given by the said mortgage. The respondent by his petition then denied that appellant had paid for him the sum of $700, or any part thereof, and denied also that he owed the note for $2.625, or any part thereof. To this petition there was a demurrer, which the court overruled.

The appellant then filed his answer, stating in substance that previous to and at the time of executing the mortgage by the respondent, he, the said respondent, was...