Koehring v. Muemminghoff

• Decision Date: 31 October 1875
• Citation: 61 Mo. 403
• Parties: MARIA E. KOEHRING, BY HER TRUSTEE, JOHN R. MARTIN, Respondent, v. GERHARDT MUEMMINGHOFF, Appellant.
• Court: Missouri Supreme Court

61 Mo. 403

MARIA E. KOEHRING, BY HER TRUSTEE, JOHN R. MARTIN, Respondent,

v.GERHARDT MUEMMINGHOFF, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Franklin Circuit Court.

J. C. Kiskaddon, for Appellant, cited Bander vs. Bander, 7 Barb. 560; French vs. Kennedy, 7 Id., 452; Edw. Bills, 709; 1 Am. Lead. Cas., 614; Ferry vs. Ferry, 2 Cush., 92; Hastings vs. Wiswall, 8 Mass., 455; Greenleaf vs. Kellogg, 2 Mass., 568; Cooley vs. Rose, 3 Mass., 221; Bannister vs. Roberts, 35 Me., 75; Doe vs. Warren, 7 Greenl., 48; 1 Greenl. Ev., §§ 275, 278, 280; Murdock vs. Ganahl, 47 Mo., 135; Walker vs. Engler, 30 Mo. 130; Woodward vs. McGaugh, 8 Mo., 161; Massman vs. Halscher, 49 Mo., 87.

John R. Martin, for Respondent, cited 1 Greenl. Ev., 12th ed., §§ 282, 288.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Franklin circuit court to recover a tract or tracts of land in the petition described. The petition was in the usual form. The answer was a denial of the facts stated in the petition.

The trial was by the court, a jury having been waived by the parties. It was admitted by both parties that William Kelso was the common source of title under which both parties claimed. The plaintiff on his part offered in evidence, which was read without objection, a deed by which the land in controversy was conveyed by William Kelso and wife to the defendant. This deed appears to have been executed on the fourth day of June, 1871.

The plaintiff next offered in evidence a deed, commonly called a deed of trust, bearing the same date of the deed previously read in evidence, by which the land in controversy was conveyed by the defendant and his wife to William Kelso in trust to secure the payment of a promissory note, executed by the defendant, by which he promised to pay to the order of J. H. Koehring the sum of three thousand three hundred dollars. The promissory note secured by the deed of trust is copied in the deed and reads as follows:

“$3,300.

Washington, Mo., June 14, 1871.

Five years after date I promise to pay to the order of J. H. Koehring, thirty-three hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of eight per cent per annum.

Gerhard Muemminghoff.”

After setting forth the note as above copied, the deed of trust proceeded to set forth the following condition upon which the conveyance was made, to-wit: “Now, if the said note be well and truly paid when the same shall become due and payable, according to the tenor and effect thereof, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the st part; but should be made in the payment of the said note, or any part thereof, or the interest that may accrue thereon or any part thereof, as the same shall become due and payable, then this deed shall remain in force, and the party of the second part,” etc. The deed then proceeds to give the trustee power to sell by giving twenty days' notice, in form that is unobjectionable, and concludes in the usual form.

This deed was objected to by the defendant, for the reason that it appeared by said deed that no breach of the condition thereof had yet occurred. The court overruled the objection and admitted the deed in evidence, to which action exceptions were saved.

The plaintiff next offered in evidenee a deed dated the 10th day of August, 1872, from Kelso, the trustee in the deed of trust read in evidence, to J. H. Koehring, plaintiff, as trustee for Maria E. Koehring, attempting to convey the land in question to said Koehring, under the power in the deed of trust. This deed was also objected to by the defendant, because it appeared that no breach had been made of the conditions in the deed of trust, and that the trustee in the deed of trust, therefore, had no power to sell the land named. This objection was also overruled, and the deed read, to which the defendant again excepted.

The plaintiff then introduced one Wilhelmi as a witness, who testified that he drew the deed of trust, and the note described therein; that the parties at the time informed him that interest was to be paid annually; that he understood that the words “per annum,” used in the note, meant that the interest was to be paid every year; that he had so informed the parties to the note, and that they had assented to the drawing of the note in that language. The witness further stated that the words “per annum” mean every year, and that he had told the defendant at the time, that by the terms of the note the interest was payable every year; that he said it was all right.

The defendant, at the time objected to this oral evidence, on the ground that parol evidence was not admissible to vary or add to the note and mortgage read in evidence. This objection being also overruled, objections were again saved. The defendant introduced no evidence. There were several declarations of law given and several refused by the court, to which objection is made, but as they raised no questions of law not raised by the evidence, they will not be noticed. The court rendered a judgment for the plaintiff for the possession of the land and damages. The defendant then made an unsuccessful motion for a new trial, and appealed to this court.

It will be seen from the foregoing statement of this case that the only questions to be considered by this court are, first, as to the proper construction to be given to the note secured by the deed of trust read in evidence; and second, whether oral evidence was properly received by the court, to assist in its proper construction?

The language of the note, so far as it is material to its proper construction as it affects this case, is: “Five years after date, I promise to pay to...