Martin v. Nixon

• Decision Date: 01 October 1886
• Citation: 4 S.W. 503,92 Mo. 26
• Parties: MARTIN v. NIXON and others.
• Court: Missouri Supreme Court

4 S.W. 503

92 Mo. 26

MARTIN v. NIXON and others.

Supreme Court of Missouri.

October Term, 1886.

1. TRUST DEED — DEFECTIVE EXECUTION — EFFECT.

A deed of trust regular in form, and acknowledged by the grantor before a proper officer as his act and deed, but lacking the grantor's signature, which was omitted by mistake, will be regarded in equity as a mortgage, and enforced against the lien of a judgment creditor of the mortgagor, subsequently acquired. RAY, J., dissenting.

2. JUDGMENT — LIEN — MORTGAGE — MISTAKE.

Where land intended to be included in a mortgage is omitted by mistake, and a judgment is subsequently rendered against the mortgagor, the lien of the judgment creditor is subject to the equity of the mortgage. RAY, J., dissenting.

3. MORTGAGE — CONSIDERATION — EXTENSION OF TIME.

Extension of time by a creditor for the payment of a debt due him by the debtor, as security, is a valid consideration, and is sufficient to support a deed of trust given by the debtor to secure a new note for the debt.

Error to circuit court, Johnson county.

W. W. Wood and W. H. Brinker, for Martin, defendant in error. S. P. Sparks, for Nixon and others, plaintiffs in error.

NORTON, C. J.

This cause was tried on the following agreed statement of facts: "That on the fourteenth day of December, 1882, the plaintiff recovered a judgment in the circuit court of the county of Henry, in the state of Missouri, against one John Woodard and W. R. Muir for the sum of $637.51; and that, on the eighteenth day of December, 1882, he caused a duly-certified transcript of said judgment to be filed in the office of the clerk of the circuit court within and for the county of Johnson, in the state of Missouri; and that afterwards he caused an execution to be issued upon said judgment, on the seventeenth day of August, 1883, directed to the sheriff of the said county of Johnson, which said execution was by the sheriff, on the eighteenth day of August, 1883, levied upon the following described real estate, situate in the county of Johnson, as the property of said John Woodard, to-wit: The north-east quarter of the south-east quarter of section 26, township 44, range 24; that on the nineteenth day of October, 1883, the said land was sold by said sheriff under said execution, at which sale plaintiff became the purchaser of all the right, title, and interest of the said John Woodard therein, and received a deed therefor; that on the twenty-first day of November, 1882, the said John Woodard was indebted to and owed defendants the sum of $433, security on two certain promissory notes of one W. R. Muir, and payable to defendants, which were then past due; and in consideration of said debt, and the further agreement of defendants to extend, and the extension of the time of payment of the sum of money due by said notes for a period of six months, the said John Woodard promised and agreed to and with defendants to execute his negotiable promissory note, in lieu of the notes of himself and the said Muir, to the defendants, for the said sum of $433, being dated November 21, 1882, due six months after date, with interest thereon at the rate of 10 per cent. per annum, and if the interest be not paid annually, to become as principal, and bear the same rate of interest; and to execute, acknowledge, and deliver to W. T. Shivil his deed of trust conveying to said Shivil the following described real estate: The north-east quarter of the south-east quarter of section 26, township 44, range 24, to secure the payment of said note, with power of sale in said trustee, if said note should not be paid according to its tenor and effect; that in pursuance of said agreement of said Woodard, the defendants extended the time of payment of said sum of money, and said Woodard, in part performance of said agreement, executed and delivered to defendants his promissory note in the following words and figures, to-wit:

                "`$433.00.                           WINDSOR, Mo., November 21, 1882
                

"`Six months after date, I promise to pay to order of Catherine Nixon and Emma Nixon four hundred and thirty-three dollars for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 10 per cent. per annum, and if the interest be not paid annually to become as principal, and bear the same rate of interest.

                                                                    "`JOHN WOODARD.'
                

— "And did at the same time cause to be drafted a deed of trust purporting to convey to W. T. Shivil, trustee, the premises aforesaid, for the use and benefit of defendants, to secure the payment of said notes, and did on said day appear before one N. K. Chapman, a notary public within and for the county of Henry, state of Missouri, and acknowledged the same to be his act and deed, for the purposes expressed in said deed, and did deliver the said deed to defendants; that on the following day, November 22, 1882, defendants caused said instrument to be filed in the office of the recorder of deeds within and for Johnson county, Missouri, for record; that the said John Woodard, by an oversight and mistake, omitted to subscribe his name to said deed of trust, although fully intending to do so; that on the twenty-third day of November, 1882, the recorder of Johnson county discovered that said deed of trust had not been subscribed by said Woodard, and on same day transmitted same to H. B. McCleverty, who had sent same to him, who, overlooking the fact that said deed of trust had not been so subscribed, retained possession of the same until the twentieth of December, on which day said John Woodard subscribed the same, and it was returned to said recover on the twenty-first day of December, 1882; that thereupon they caused said deed to be recorded in the office of the recorder of deeds in and for Johnson county, Missouri, as the same will fully appear by reference to Deed of Trust Record S, at pages 445, 446, and 447; that in drafting said deed of trust, by a mistake of the scrivener, the said premises therein conveyed were described as situate in the county of Henry, state of Missouri, when in truth and in fact they are situate in the county of Johnson, state of Missouri; and, for the purpose of correcting said mistake, the said John Woodard, on the thirteenth day of August, 1883, executed, acknowledged, and delivered to W. L. Shivil, trustee for the defendants, his deed of correction, properly describing the said lands as situate in the county aforesaid, which said deed was duly filed in the office of the recorder of deeds within and for said county, and recorded at page 16 in Deed of Trust Book U, on file in said office, which said deed contains the same recitals and covenants as the first deed of trust herein described, except that it fully described said lands as situated in Johnson county, instead of Henry county, Missouri, and contained the further recital: `This deed of trust is given and executed to the said parties hereto, to correct an error and mistake in the name of the county stated in a former deed of trust, executed by the said John Woodard to W. T. Shivil, trustee, Catherine and Emma Nixon being the beneficiaries in said former deed, of which this deed is a correction; is dated on the twenty-first day of November, 1882, and recorded in the recorder's office of Johnson county, Missouri, in Book S, at page 445. In said former deed, the land therein described is stated to be situated in Henry county, Missouri, when it should have been Johnson county;' that afterwards, default having been made in the payment of said note according to its tenor and effect, the said trustee herein named, W. T. Shivil, refused to act, and in pursuance of such refusal and authority conferred by said deed of trust, H. H. Russell, the then sheriff of said Johnson county, at the request of the said defendants, and by virtue of the power conferred on him, did, in place and stead of said Shivil, after having given the notice required by said deed, on the twenty-fourth day of March, 1884, at the court-house door, in the city of Warrensburg, county of Johnson, state of Missouri, offer said premises for sale by public auction to the highest bidder for cash in hand, to satisfy and pay off said debt so secured, and, defendants being the highest bidders, having bid therefor the sum of $250, the same was stricken off and sold to the said defendants, and in pursuance of said sale and purchase the said H. H. Russell, trustee as aforesaid, executed, acknowledged, and delivered his deed as such trustee, conveying to them said premises.

"It is further admitted that the defendants entered into said premises at the time alleged, and that, if the court finds that the plaintiff is entitled to recover, the damages may be assessed at one cent, and the monthly rents at no dollars per month. It is agreed that, upon the facts admitted, the court may make such separate finding and judgment upon each count of the petition as the law may warrant."

On the above facts, the court declared, by its finding, that under the law plaintiff was entitled to recover, and rendered judgment accordingly, from which defendants have appealed.

The principles of law applicable to the facts agreed upon may...