McCollum v. Boughton

• Decision Date: 03 March 1896
• Citation: 30 S.W. 1028,132 Mo. 601
• Parties: McCollum v. Boughton, Appellant
• Court: Missouri Supreme Court

30 S.W. 1028

132 Mo. 601

McCollum v. Boughton, Appellant

Supreme Court of Missouri, First Division

March 3, 1896

Rehearing Denied 132 Mo. 601 at 617.

Appeal from Stoddard Circuit Court. -- W. C. Brown, Esq., Special Judge.

The material parts of the deed of trust mentioned in the opinion are as follows:

"This deed, made and entered into this 24th day of August, one thousand, eight hundred and eighty-eight, by and between Geo N. Boughton and Callie G. Boughton, his wife, of the first part, and F. M. Ladd, of the second part, and Chas. D Mathews, of the third part,

"witnesseth That the parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and the sum of one dollar to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell unto the said party of the second part, and to his heirs and assigns forever, the following described tract of land, situated in the county of Stoddard and State of Missouri, to wit:" (Here follows description.)

"The said Geo. N. Boughton and Callie G. Boughton remain in possession of said premises as tenants of said F. M. Ladd, and in the event of a sale, however, we hereby covenant to quit and deliver possession thereof to the purchaser, without notice to quit, with all the rights, privileges, and appurtenances thereto belonging."

"In trust, however, for the following purposes: Whereas, the said Geo. N. Boughton and others did on the 24th day of August, 1888, make and deliver to the said C. D. Mathews a promissory note as follows:

"'$ 1,500.

Sikeston, Mo., August 24, 1888.

"'Two years after date we promise to pay to C. D. Mathews, or order, fifteen hundred dollars ($ 1,500), for value received, with ten (10) per cent per annum thereon from date, which interest shall be due and payable annually; and if interest is not paid annually the same shall become a part of the principal, and bear interest at the same rate.

(Signed by)

"'Geo. N. Boughton,

"'Thos. J. Ulen,

"'J. W. McCollum, and

"'E. J. Malone.'

"And whereas, for the purpose of better securing said indebtedness, said parties of the first part contract and agree:"

(Then follows a number of agreements regarding taxes, insurance, and liens.)

"Now, if said promissory note shall be paid at maturity, and if the covenant aforesaid shall be met and truly kept, and all amounts expended as aforesaid shall be refunded and paid to the said party of the third part, or his assigns, by the said party of the first part, or their legal representatives, then the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but if said promissory note, or either or any part of any one of them, shall be allowed to remain due and unpaid, or in case of payment of any amount expended as aforesaid shall not be made, or in case of said covenants, or any part thereof, shall not be fully kept, then this deed shall remain in force, and the said party of the second part, or in case of his death or absence from the state of Missouri, or failure or refusal to act, then the sheriff of the county of Stoddard, in the state of Missouri, acting as such for the time being, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at the courthouse door in the county of Stoddard, state of Missouri, for cash, first giving thirty days' public notice," etc.

(Then follows a number of the usual stipulations in regard to sale by trustee, application of proceeds, and maturity of whole debt in case of failure to meet any installment when due, etc.)

"In witness whereof, the parties have hereunto set their hands and seals the day and year aforesaid.

"Geo. N. Boughton. [SEAL]

"Callie G. Boughton. [SEAL]"

Acknowledged in due form, August 24, 1888, and filed for record, August 29, 1888. The other material facts appear in the opinion.

Reversed and remanded.

C. L. Keaton and J. J. Russell for appellant.

(1) The sale under the deed of trust was void, and the deed thereunder passed no title to plaintiff. Siemers v. Schrader, 88 Mo. 20; Bank v. Stumpf, 73 Mo. 311; Schanewerk v. Hoberecht, 117 Mo. 22. (2) This deed of trust specified on its face that, "For the purpose of better securing said indebtedness," etc., so that the makers of the note, including plaintiff, were primarily liable in the premises. Henry v. Sneed, 99 Mo. 407. (3) At most, Mrs. Boughton, defendant, not being a party to the note, could not be held to be more than a cosurety, and her property could not be taken to pay the whole debt, otherwise it would be a fraud on her rights. She should be required to do no more than to contribute. And any defense that could have been made to prevent the sale of the land can still be made under her equitable answer in this case to prevent injustice and multiplicity of suits, as the makers of the note bought and plaintiff, one of them, took the deed to the same from the trustee, and a court of equity will still do justice between the parties. 46 Mo. 557. (4) The plaintiff must recover on the strength of his own title and can not recover against defendant in this action over her equitable answer upon a defective, fraudulent, oppressive, or void title fraught with injustice to the defendant in the premises. And the court permitted witnesses to testify to agreements made with Geo. N. Boughton in defendant's absence as to this property being first liable for this debt. This was incompetent and very prejudicial to defendant's rights to a court that believed the same to be material, and changes the written instruments. Biers v. Wolf, 116 Mo. 179; Harding v. Wright, 24 S.W. 211; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; Henry v. Sneed, supra; Riddle v. Ramsey, 52 Mo. 153. (5) The payment of the note by plaintiff, a comaker thereof, extinguished the deed of trust. Johnson v. Johnson, 81 Mo. 336; Hagerman v. Sutton, 91 Mo. 519; Meads v. Hutchinson, 111 Mo. 620; 119 Mo. 280.

J. L. Fort for respondent.

(1) A married woman in Missouri may, by joining with her husband as prescribed by our statute of conveyances, execute a valid mortgage or deed of trust upon her legal real estate to secure a debt of her husband, and may appoint therein a trustee to make sale of the property in default of payment of the debt secured. Schneider v. Staihr, 20 Mo. 269; Hagerman v. Sutton, 91 Mo. 519; Rines v. Mansfield, 96 Mo. 394; Wilcox v. Todd, 64 Mo. 390; Ferguson v. Soden, 111 Mo. 208; Meads v. Hutchinson, 111 Mo. 620; Comings v. Leedy, 114 Mo. 454. (2) And such mortgage, or deed of trust, is valid and binding upon the feme covert, notwithstanding the note secured by the mortgage is void as against her. Hagerman v. Sutton, 91 Mo. 519; Rines v. Mansfield, 96 Mo. 394; Meads v. Hutchinson, 111 Mo. 620; Comings v. Leedy, 114 Mo. 454. (3) Where a married woman and her husband mortgage the legal real estate of the former to secure the debt of the latter the wife occupies the attitude of a surety toward her husband. Wilcox v. Todd, 64 Mo. 388; Mayes v. Robinson, 93 Mo. 114. (4) There is no evidence in this record that the respondent was a comaker or a cosurety on the note. His contract was to pay if Geo. N. Boughton and the deed of trust failed to pay. Brandt on Suretyship and Guarantee [2 Ed.], section 265; Adams v. Flanagan, 36 Vt. 400; Keith v. Goodwin, 31 Vt. 269; Sherman v. Black, 49 Vt. 198; Oldham v. Brown, 28 Ohio St. 41; 24 Am. & Eng. Encyclopedia of Law, p. 815, note 5. (5) Appellant executed the deed of trust without any understanding that respondent should sign the note which it was intended to secure. When she executed the deed of trust and delivered it to her husband her liability to pay the entire debt was attached. Geo. N. Boughton had authority to negotiate it in that condition, or, if not acceptable to the creditor, to obtain other signatures to make it so, and might therefore accede to conditions on which others were willing to sign. When this note was presented to respondent for him to sign he was under no obligations to appellant to sign it. She had already executed the deed of trust and was already liable for the entire debt. Therefore any limitations that respondent placed on his contract of suretyship could not affect appellant's rights. Hence it was competent for respondent to make the contract as he did, and what he said to Geo. N. Boughton at the time about it, is competent as part of the res gestae to show his relations to the note. Oldham v. Brown, 28 Ohio St. 41, and cases cited on pp. 52, 53. (6) This is not a suit in equity. Carter v. Prior, 78 Mo. 222; Estes v. Fry, 94 Mo. 266. If it is a suit in equity then appellant will have to stand or fall on consistent defenses. She can not deny the validity of the respondent's title and at the same time claim contribution. She can not claim under and against the sale. State to use v. Koch, 47 Mo.App. 269; Tracy v. Cover, 28 Ohio St. 61; Skrainka v. Rohan, 18 Mo.App. 340.

Barclay, J. Macfarlane and Robinson, JJ., concur; but Brace, C. J., dissents. Barclay, J. Brace, C. J., and Gantt and Burgess, JJ., dissent. Macfarlane, Sherwood and Robinson, JJ., concur.

OPINION

In Banc.

Barclay J.

The petition is in ejectment for certain lots in the town of Dexter, Stoddard county, Mo. It follows the usual statutory form, and lays the ouster, September 21, 1890.

The answer denies the petition, in general terms, and then sets up a defensive state of facts, which will be discussed further along.

The plaintiff filed a reply bringing into the case more new matter, the nature of which will soon appear.

A trial came on in due course, resulting in a finding and judgment for plainti...