Hord v. Harlan

• Decision Date: 29 March 1898
• Parties: HORD et al. v. HARLAN et al.
• Court: Missouri Supreme Court

45 S.W. 274

143 Mo. 469

HORD et al. v. HARLAN et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1898.

MORTGAGES — RECORD — PRIORITY.

The mortgagor in an unrecorded mortgage, by representing his property as unincumbered, procured the indorsement of others for various sums, which were put into judgments. The mortgagee had no knowledge of the representations, and had only negligently failed to record his mortgage. There was no agreement between mortgagor and mortgagee not to record, and no fraud on the part of the mortgagee. Held, that the mortgagee's lien could not be postponed for the judgments.

Error to circuit court, Callaway county; John A. Hockaday, Judge.

Bill by J. W. Hord and others against C. H. Harlan and others. Bill dismissed, and judgment for defendants. Plaintiffs brought error. Affirmed.

Silver & Brown and T. A. Boulware, for plaintiffs in error. R. A. Crews and D. P. Bailey, for defendants in error.

GANTT, P. J.

This is a bill in equity by plaintiffs to postpone the lien of a certain deed of trust executed by defendant Charles Harlan to Daniel M. Tucker, trustee for William B. Tucker, January 26, 1893, to secure a note for $4,000. The several plaintiffs, J. W. Hord, Joseph A. Dearing, H. T. Greenway, E. M. Bryan, A. M. Taylor, John W. Gordon, and George C. Ramsey, each obtained a several judgment in his own behalf against defendant Harlan in the circuit court of Callaway county during the summer and fall of 1894; the total amount of such judgments aggregating $2,461.35. The various debts upon which these judgments are based were incurred by the said plaintiffs becoming sureties for Harlan in bank at Jefferson City and Fulton. The farm known as the "Home Place" of defendant Harlan consisted of 243.75 acres of land, about 25 miles from Fulton, the county seat, in the south part of Callaway county, on the Missouri river. It was estimated by the various witnesses to be worth between $7,000 and $8,000. It sold for $5,050, at the trustee's sale under the Tucker deed of trust, to A. M. Taylor, one of the plaintiffs. On March 24, 1879, W. B. Tucker loaned C. H. Harlan $2,000, at 8 per cent. compound interest, and took a deed of trust on the "Home Place." This deed of trust was not recorded until November 21, 1892. On the 16th of January, 1893, the note for $2,000 amounted to $5,800. Tucker on that day remitted $1,800, and took a new note from Harlan for $4,000, and a new deed of trust on the same land to secure the new note. The plaintiffs' judgments represent the balances due on the several notes of Harlan, on which they were his sureties. He had owned an island, and had given a deed of trust thereon to secure several of these notes, and had given personal security on others; and, after these mortgages were foreclosed, these balances still existed, and were paid by these sureties. These debts were contracted by C. H. Harlan prior to the filing of the Tucker deed of trust. All of these plaintiffs testified that they were ignorant of the existence of the Tucker deed of trust of 1879 until after it was recorded in 1892; that, had they known the "Home Place" was thus incumbered, they would not have gone security for C. H. Harlan. All, or nearly all, of them, testified that he had assured them the "Home Place" was clear of incumbrances, but no knowledge of these representations by Harlan to these plaintiffs, or either of them, was brought home to Tucker, who lived some 25 miles distant. There was no evidence that Tucker made any agreement or had any understanding with Harlan that he would not record his deed of trust. Tucker testified that the failure to record his deed was a piece of pure negligence on his part, which he discovered when his friends began to predict that he would lose by having become surety for Harlan on a guardian's bond. The circuit court, after hearing all the evidence,...