Frase v. Lee

• Decision Date: 03 January 1911
• Parties: FRASE et al. v. LEE et al.
• Court: Missouri Court of Appeals

134 S.W. 10

152 Mo. A. 562

FRASE et al. v. LEE et al.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Rehearing Denied February 6, 1911.

1. EVIDENCE (§ 419) — PAROL EVIDENCE — DEEDS — ASSUMPTION OF DEBT.

Where a deed did not state whether or not the grantee assumed the payment of a mortgage executed by a prior grantee, parol evidence was admissible to show that the grantee agreed when he purchased to pay the debt as a part of the price.

2. MORTGAGES (§ 280) — ASSUMPTION BY GRANTEE — CONSIDERATION.

If the purchaser of mortgaged property did not agree when he purchased to pay as a part of the price a mortgage executed by a prior grantee, his subsequent agreement to pay the debt would not bind him unless supported by a new consideration, and his voluntary payment of the interest thereon would not bind him to pay the principal of the debt.

3. LIMITATION OF ACTIONS (§ 155) — RUNNING OF LIMITATIONS — PAYMENT BY VOLUNTEER.

Since a purchaser of land incumbered by mortgage was not bound to pay it, or interest thereon, unless he agreed when he purchased to do so as a part of the consideration, his payment of interest under a subsequent agreement with the holder of the note to do so without any new consideration would not stop the running of limitations ; such payment being voluntary.

Appeal from Circuit Court, Jefferson County.

Action by Charles Frase and others against Thomas J. Lee and others. From a judgment dismissing the bill, plaintiffs appeal. Transferred from the St. Louis Court of Appeals. Affirmed.

Marion C. Early and Clyde Williams, for appellants. Byrns & Bean, for respondent Block. D. D. Holmes, for respondent Lee.

COX, J.

Action to foreclose deed of trust. The defense was a plea of the statute of limitations. The deed of trust was given by C. Brassel to Robert Backer, trustee for Charles Frase, dated July 23, 1891, to secure a promissory note of that date for $250, due one year from date. This deed of trust was given to secure the balance of the purchase price of the land covered by it. On July 8, 1893, Brassel conveyed the land to August Block by general warranty deed. Block quitclaimed it back to Brassel December 22, 1903. Brassel conveyed it to George M. Harrington February 5, 1904, by general warranty deed. Harrington conveyed to Thomas J. Lee March 13, 1905, by general warranty deed. The deed of trust in question was duly recorded, but none of the deeds made when the land was transferred made any reference to this deed of trust. Brassel paid nothing on the note secured by the deed of trust after he first sold the land. The interest upon the note was paid by Block for several years; the date of his last payment being July 21, 1898. This was the last payment made on the note. This suit to foreclose the deed of trust was begun March 30, 1908, and the question at issue in this case is whether or not the payment of interest by...