Hogel v. Lindell

• Decision Date: 31 March 1847
• Citation: 10 Mo. 483
• Parties: HOGEL v. LINDELL.
• Court: Missouri Supreme Court

10 Mo. 483

HOGEL

v.LINDELL.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

GEYER, for Plaintiff.

1. The Circuit Court was not authorized to charge the jury orally, without consent of parties--the act of 1838 not being repealed. See acts 1838-9, p. 27; Rev. Code 1845, p. 362, §§ 19, 20.

2. If oral instructions were not forbidden by law, those given are erroneous, because they have a direct tendency to embarrass and mislead the jury; because they so explain the written instructions as to submit to the jury the interpretation of a contract, and at the same time make the whole case depend on a single fact, which being found either way, the jury are informed, is to be followed by a verdict for the defendant, virtually taking the whole case from the jury. Hughes v. Ellison, 5 Mo. R. 110; Morton v. Reeds, 6 Mo. R. 64; Fugate & Young v. Carter, 6 Mo. R. 267; Newman v. Lawless, 6 Mo. R. 293; Plater v. Scott, 6 Gill. & Johns. 116; Selin v. Spander, 11 Serg. & Rawle, 319; Wash v. Maclay, 2 Serg. & Rawle, 415; Coleman v. Roberts, 1 Mo. R. 97; Woodward v. Thornton, 8 Mo R. 161; Jones v. Talbot, 4 Mo. R. 279; Hickam v. Griffin, 6 Mo. R. 37.

3. The contract between the plaintiff and John Lee & Co., being reduced to writing, the only fact to be determined by the jury was the authority of Elliot Lee to bind the defendant, Lindell. The interpretation of the contract was exclusively within the province of the court. Coleman v. Roberts, 1 Mo. R. 97; Fugate & Young v. Carter, 6 Mo. R. 267; Newman v. Lawless, 6 Mo. R. 279; McRea v. Scott, 4 Rand. 463; Wash v. Maclay, 2 Serg. & Rawle, 415; Broome's Legal Maxims, pp. 44-5, and cases cited; 3 Bingham, 217 (13 Eng. C. L. R.); Levis v. Gadsby, 3 Cranch, 180; 8 Co. R. 308; 9 Co. R. 13; 1 Coke Lit. 295.

4. Oral evidence of previous negotiations, or tending to prove that the deed absolute in its terms was intended as a mortgage, or in any manner to vary, contradict or defeat the deed, was incompetent, and if admitted, cannot be taken into consideration by the court in determining the legal effect of the deed, nor authorize a reference of the question to the jury. In a court of law, the evidence of a condition, defeasance or covenant, must be evidenced by writing of as high a nature as the deed; and even in equity, evidence that an absolute deed was intended as a mortgage, must be in writing, unless it is proved that the defeasance was either through fraud, accident or mistake, never executed, or has been lost or destroyed. Cowen & Hill's notes to Phillips, part 2nd, p. 1467; 2 Stephens' N. P. 1532; Woodward et al. v. McGaugh et al. 8 Mo. R. 161; Keller v. Brown, 4 Mass. R. 443; Flint v. Shelden, 13 Mass. R. 443; Flagg v. Mann, 14 Pick. 467; Selwate v. Hanover, 16 Pick. 222; Lund v. Lund, 1 N. Hamp. R. (Adams') 39; Beckford v. Daniel, 2 N. Hamp. R. 71; Rundlett v. Otis, 2 N. Hamp. R. 197; 15 Johns. R. 205, 255; Cowen & Hill's notes, part 2nd, pp. 1428, 1433; Champion v. White, 5 Cowen, 509; Hull v. Adams, 1 Hill, 60; Bond v. Susquehannah Bridge Co., 6 Har. & Johns. 128.

5. The oral evidence, if competent aad credible, does not prove, or tend to prove, that there was any condition of defeasance, oral or written, nor any covenant or agreement; there was no debt to be secured; the previous debt was discharged and the securities given up and cancelled. No remedy against Hogel;--at most, there was a resulting trust to pay to Hogel whatever the property should bring over and above the amount of the extinguished debt--and such a trust cannot be established by parol. Flint v. Shelden, 13 Mass. 443; McFier v. Shepperd, 1 Bay, 461; Shealer v. Jones, 1 Murphy, 449; Godwin v. Hubbard, 15 Mass. 218; Dickerson v. Dickerson, 1 Car. Law R. 262.

6. The acceptance of the deed by Lindell, and the use of the property as his own, is a ratification of the contract, as made in writing by Lee, on behalf of the firm, and there is nothing to justify the 4th instruction given by the court. There could be no necessity for any subsequent agreement between the plaintiff and the defendant, especially after a refusal by the defendant to make any, in respect to the time and manner of the payment.

7. A new trial ought to have been awarded on account of misdirection, and because the verdict is against law and evidence. The deed is not a mortgage, and could not be made so by oral evidence. The evidence given by defendant, if allowed to control the deed, does not establish any condition of defeasance, and is, besides, in all essential particulars, overwhelmed by the testimony of several disinterested witnesses to the transaction.

GAMBLE & BATES, for Defendant.

1. The document in the form of an account is to be taken as a whole, and if it shows a balance of purchase-money unpaid, it shows what was the understanding of the parties at the time in relation to said balance, and shows a special agreement subsisting and executory, upon the violation of which the plaintiff could have his action, and which remaining unexecuted prevented his suing in the present form. Stollings v. Sappington, 8 Mo. R. 188; Chambers v. King & Tunstall, 8 Mo. R. 517. Note: There is no count upon this agreement and no evidence that it has been either executed or broken.

2. If the true character of the transaction appears to be that the conveyance should be security for a debt, and not a sale of the property, the plaintiff is not entitled to recover. Courts of law recognize the rule, that a mortgagor is still the owner of the land mortgaged. 4 Johns. 41; 1 Wend. 433; 11 Johns. 534; 14 Wend. 63; 8 Wend. 641; 9 Wend. 227; 9 Cowen, 406; 4 Bibb, 441; 7 J. J. Marsh. 133; 1 A. K. Marsh. 582. Courts of law will also recognize the rule that a deed, absolute on its face, if it is a mere security for a debt, will be treated as a mortgage--that the property may be redeemed--that the mortgage may be foreclosed. In this case, the plaintiff first goes out of the deed to show the nature of the transaction, and then the defendant gives his evidence to show its nature, and this evidence being admitted, showed that the plaintiff had no right of action for property sold, nor for money received--nor for money paid--nor upon an account stated. 5 Greenl. 96; 7 Greenl. 435.

3. There is an exception to the oral explanations given to the jury by the court. As these explanations were all favorable to the plaintiff, it is supposed the exception is only made to their being oral, on the ground that the court could not instruct except in writing. The prohibition of oral instructions formerly in force, was an act supplementary to the act establishing Courts of justice and prescribing their powers and duties. Sess. acts of 1838, p. 27. The Revised Laws, entitled “An act to establish Courts of justice and prescribe their power and duties,” Rev. Code, 328, is a revision of all previous acts upon that head. The 20th section of the act concerning the Revised Laws, p. 699, repeals all acts that were revised and not contained in the Code.

SCOTT, J.

This was an action of assumpsit brought by the plaintiff against the defendant in error for part of the consideration money of a lot alleged to have been sold and conveyed by the plaintiff to the defendant. The declaration also contained most of the common counts. Pleas, non-assumpsit and set-off. Upon the trial, the defendant obtained a verdict.

At the trial, a deed was produced by the defendant, on notice, and was read in evidence by the plaintiff. It is dated the 1st December, 1837, and is a conveyance by plaintiff to the defendant of the lot in the declaration mentioned, for the consideration of $4,500 in hand paid, the receipt of which is acknowledged. The plaintiff, after proving that John Lee, Elliott Lee and the defendant compose the firm of John Lee & Co., produced and read in evidence an account, with the memorandum thereon, proved to be in the hand-writing of Elliott Lee, one of the firm of John Lee & Co., as follows:

“JEFFERSON CITY, 1st Dec'r, 1837.

Mr. JOHN F. HOGEL, To John Lee & Co.,

Dr.

To amount of your note, dated 10th August, 1836

$ 909 49

To amount interest on same to date

121 20

To amount of Hogel's & Stuart's account

1,385 37

To amount interest on same

80 81

To amount Joseph Martin & Co., ac't and interest

82 18

--$2,579 05

Cr.

By brick house on Madison street, lot containing 50 feet front by 125, as per deed of date

4,250 00

$1,670 95

Which balance of $1,670 95, is to be paid as per agreement hereafter to be made between J. G. Lindell and said Hogel.”

Evidence was given tending to show that the sale was absolute; that the property, at the time of the sale and afterwards, was worth $350 annually, though its rents afterwards fell considerably. Lindell, when asked for the balance due for the lot, would say that he would not pay until the property was sold No evidence was given showing that any agreement had been made respecting the payment of the balance. The defendant produced in evidence declarations showing that the conveyance, though absolute in its terms, was only designed as a security for a debt, and that the plaintiff was only to be entitled to what might remain from the proceeds of the sale after payment of the debt. The evidence on this subject was contradictory. The defendant accepted the deed of conveyance and received the rents.

The court, on the prayer of the defendant, instructed the jury as follows: That if the jury find from the evidence that the conveyance of the house and lot in Jefferson City was made for the purpose of securing the debt due from Hogel to John Lee & Co., and not as an absolute sale of the same to Jesse G. Lindell, then the jury must find for the defendant. That the jury must find for the defendant, unless they shall believe from the evidence that there was an agreement made between ...