Higgins v. Deering Harvester Co.

• Decision Date: 17 March 1904
• Parties: HIGGINS v. DEERING HARVESTER CO. et al.
• Court: Missouri Supreme Court

79 S.W. 959

181 Mo. 300

HIGGINS v. DEERING HARVESTER CO. et al.

Supreme Court of Missouri. Division No. 1.

March 17, 1904.

PRINCIPAL AND SURETY — ALTERATION — DISCHARGE OF SURETY — MORTGAGES — CANCELLATION.

1. Where, in a suit by a wife to cancel a trust deed given to secure her husband's debt, the issue is whether the trust deed was released by defendant procuring additional security, defendant cannot attack the wife's title, nor claim it did not know she executed the trust deed as surety for her husband.

2. Where a wife executes a trust deed of her separate realty to secure a note given for her husband's debt, and the payee, with notice that the land was only security for the husband's debt, procures a third person to sign the note without the wife's knowledge or consent, such alteration in the note discharges the land.

Appeal from Circuit Court, Johnson County; Wm. L. Jarrott, Judge.

Bill by Minnie E. Higgins against the Deering Harvester Company and others. From a decree in favor of the plaintiff, defendants appeal. Affirmed.

W. W. Wood, for appellants. J. W. Suddath, for respondent.

MARSHALL, J.

This is a proceeding in equity to cancel a deed of trust made by the plaintiff and her husband, Emmet C. Higgins, on February 14, 1899, to W. T. Hull, as trustee for the defendant company, whereby the plaintiff pledged her property, to wit, lot 3 and the south half of lot 4 of Russell's Addition to Warrensburg, as surety for the payment of four promissory notes executed by her said husband to said company for his then past due indebtedness to the company. The particular ground for relief relied on is that after the contract of suretyship was entered into the company caused John C. Higgins, her husband's father, to sign the notes as further security, whereby the contract was changed without the plaintiff's knowledge or consent, and in consequence of which her property became released. The trial developed the facts to be as follows: Originally the property belonged to Emmet C. Higgins, the plaintiff's husband. On January 7, 1898, he concluded to transfer the property to his wife. The plaintiff's testimony shows that she had furnished a part, at least, of the purchase price of the land, and for this reason he wanted to transfer the property to her. The defendant's testimony shows that there was no consideration for the transfer. But it is immaterial in this case which was the fact, for it nowhere appears from this record that the defendant was a creditor of the husband at that time; nor does it appear that any fraud was intended by the transfer; nor is this an action attacking the transfer for fraud, but, on the contrary, the defendant claims under the title of the wife, and not adversely to it. To carry out his intention, the husband caused two deeds to be prepared on January 7, 1898, one from himself and his wife to his father, John C. Higgins, and the other from his father, John C. Higgins, to his wife, Minnie E. Higgins, the plaintiff. For some reason neither of these deeds was executed at that time. The first deed, from Emmet C. Higgins and wife to John C. Higgins, was acknowledged on August 1, 1898, and recorded on September 12, 1898. The second deed from John C. Higgins, was not acknowledged or recorded until February 14, 1899. But, as will hereinafter be pointed out, it is wholly immaterial in this case, when those deeds were executed, recorded, or delivered, for the defendant claims under the plaintiff, by virtue of her deed of trust, and, if she has no title, the defendant has none. At some time, not disclosed by the record, the husband, Emmet C. Higgins, became indebted to the defendant, and on December 15, 1898, he executed to the defendant a note therefor in the sum of $651, and his father, John C. Higgins, and his brother, Hedrick C. Higgins, indorsed the same. The defendant did not seem to be satisfied with its security, so on February 13th it sent its two agents, W. T. Hull and J. E. Hart, to see John C. Higgins, the father, who lived some 10 miles from Warrensburg, about the matter. They tried to get him to give a mortgage on his property to secure the debt, but he refused. There is much conflict in the testimony as to whether or not John C. Higgins told them that he held the title to the land in controversy, and would deed it to the plaintiff, and she and her husband, the debtor, could give them a mortgage on it; but it is wholly immaterial whether he told them so or not, for in fact he did so deed it to the plaintiff, and the plaintiff did give the defendant a mortgage on it, and the validity or release of that mortgage, and not the plaintiff's title to the land, is the question involved in this case. On February 14, 1899, John C. Higgins and wife went to Warrensburg, and executed the deed that had been prepared on January 7, 1898, to the plaintiff, and it was put on record at 3:25 o'clock p. m. Thereafter, on the same day, the plaintiff and her husband executed the deed of trust in controversy here to the defendant, and it was placed on record at 5:05 o'clock p. m. The plaintiff signed the notes, as well as the deed of trust, and the deed of trust recited that it was given as security for the notes. Thereafter — the evidence is conflicting as to how long after the plaintiff signed the notes and executed the deed of trust, but the time is immaterial, as it was after such signing and execution — the defendant prevailed upon John C. Higgins to sign the notes as further security. This was done without the knowledge or consent of the plaintiff. The defendant pleads that she afterwards ratified it, but the evidence does not support the contention. Upon this showing the trial court entered a decree for the plaintiff, and ordered the deed of trust canceled, and the defendants appealed.

1. The plaintiff claims title under the deeds from her husband and herself to his father, John C. Higgins, and from John C. Higgins to her. The defendant claims under the deed of trust from the plaintiff. The issue joined in this case is whether that deed of trust was released by the act of the defendant procuring John C. Higgins to indorse the notes after the execution of the deed of trust. Under such issue and circumstances the defendant cannot be heard to attack the plaintiff's title. Therefore it cannot be heard to say that the deed from plaintiff and her husband to John C. Higgins was never delivered, and hence that the title to the land is still in Emmet C. Higgins. For the same reason it cannot be heard to say that it did not know that the plaintiff signed the notes and executed the deed of trust as surety for her husband. The defendant knew that the debt secured was the debt of the husband, and not of the wife, and that the wife's land received no benefit from the money evidenced by the notes. This being true; the wife and her property stood merely as surety for the husband's debt, and any act that would release any individual surety would release her land. The law applicable to such cases...