Gilmer v. Powell

• Decision Date: 30 April 1923
• Docket Number: No. 14693.,14693.
• Citation: 256 S.W. 124
• Parties: GILMER v. POWELL.
• Court: Missouri Court of Appeals

256 S.W. 124

GILMER v. POWELL.

No. 14693.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Certiorari Denied December 5, 1923.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Action by A. L. Gilmer against Nathaniel L. Powell. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

H. J. West, of Brookfield, for appellant. Scott J. Miller, of Chillicothe, for respondent.

BLAND, J.

This is an action on a promissory note to recover a deficiency judgment. The case was tried before the court without the aid of a jury, resulting in the court's sustaining defendant's demurrer to the evidence at the close of plaintiff's case.

The facts show that a deed of trust securing a note in the sum of $7,000 was executed by Carroll D. Lewis and Ethel S. Lewis on land in Livingston county; this land was afterward and before default sold by the Lewises to the defendant. The consideration recited in the deed to defendant was $11,600, and the deed further recited that it was made "subject to a deed of trust for the sum of $7,000 with interest from March 1, 1921." There is nothing in the deed about defendant assuming the deed of trust, but there was parol testimony that there was a written contract between Carroll D. Lewis and defendant wherein it was agreed that defendant was to pay the deed of trust. It was also shown that this $7,000 note and deed of trust constituted a part of the consideration for the sale of the land to defendant. After the deed was made to defendant he paid the interest upon the deed of trust and sought to have the latter extended.

We think that the court erred in sustaining the demurrer to the evidence. In deciding this point we are required to take the evidence in its most favorable light to plaintiff, and are not concerned with the weight thereof. Vincent v. Means, 184 Mo. 327, 340, 341, 82 S. W. 96. The contract to assume the deed of trust was properly proven by parol. Bensieck v. Cook, 110 Mo. 173, 19 S. W. 842, 33 Am. St. Rep. 422; Nelson v. Brown, 140 Mo. 580, 588, 41 S. W. 960, 62 Am. St. Rep. 755; Heffernan v. Weir, 09 Mo. App. 301, 72 S. W. 1085; Ins. Co. v. Irwin, 67 Mo. App. 90, 94; 27 Cyc. 1348. This parol agreement is said to be independent of the deed, and not contradictory thereof nor merged therein. 19 R. C. L. p. 381. Where a deed conveying the property recites that the grantee takes the title subject to a deed of trust at that time on the property, and...