McCollv. Boughton
| Decision Date | 23 December 1895 |
| Citation | 33 S.W. 476,132 Mo. 601 |
| Parties | McCollum v. Boughton, Appellant |
| Court | Missouri Supreme Court |
Original Opinion of May 14, 1895, Reported at: 132 Mo. 601.
OPINION
Since the transfer of this cause to the court in banc, we have been favored with an opinion of our learned Brother Gantt, upon which he would reach a judgment affirming that of the circuit court. His comments on the case seem to call for a few remarks supplemental to the opinion delivered in the first division.
Our learned brother advances the proposition that Mrs. Boughton and the plaintiff should both be treated as sureties for Mr Boughton, her husband. That opinion is based upon two distinct grounds, if we correctly analyze the reasoning: First, that the legal effect of the instruments was to make her a surety for her husband; and, secondly, that "it was entirely competent to receive parol evidence of the collateral contract between Boughton and the plaintiff, McCollum, Ulen, and Malone, that they were only sureties for Boughton." We will examine each of these grounds.
1. By the terms of the deed of trust, Mrs. Boughton was, no doubt, surety for her husband, as he was one of the signers of the secured note. But that proposition is stated and used as though she became surety for her husband only, and not surety for the note, with its other signers besides her husband. According to the deed, her land became bound for the payment of the note by those whose promise to pay it contains, namely, the four makers, of whom Mr. Boughton was but one. If (as my Brother Gantt appears to intimate) the deed of trust made her surety for her husband only, then the conclusion he points out might follow. But that interpretation of the deed is erroneous, and that error is a radical one. It vitiates the whole argument that our learned brother has founded upon it. The decision cited to confirm it (Wilcox v. Todd, 64 Mo. 388) deals with a case in which a husband (alone) borrowed money, and, to secure his debt, he and his wife joined in a deed of trust conveying a piece of land belonging to the wife, as well as another piece belonging to the husband. It was held that she was surety for her husband as to her piece of land so conveyed. That case falls far short of deciding that the legal effect of the instruments (namely, the note and deed of trust in this case) was to make her a surety for her husband, if by that statement the husband alone is meant. The effect of those instruments seems to us quite different. The principle declared in the very precedent cited sustains the conclusion we would reach on the present appeal, provided we are right in interpreting those instruments to mean this: that Mrs. Boughton conveyed her legal estate to secure payment of the note by its signers. If, as to her, all the makers of the makers of the note are primarily liable, and her land is security for the debt represented by the note (which all of them signed), then it must follow that no one of the makers of the note can eject her from the land by a title obtained through that very deed of trust.
The crucial question, then is, what is the correct meaning of the deed of trust? Did it bind Mrs. Boughton's land to secure the debt of Mr. Boughton or the debt of all the makers of the note? Can there be any reasonable doubt that, on the face of that instrument, the land is conveyed in trust to secure payment of the note, and the note is recited as signed by four persons, of whom plaintiff is one and Mr. Boughton another? How, then, can it be properly held that all the signers of the note are not primarily liable, as against the land conveyed to secure it, when the terms of the deed make no distinction whatever between them in respect of their liability as makers? So far as appears from the note and deed of trust, all the makers of the note are principals. Its language is, "We promise to pay," and all sign that promise. What rule of law justifies the holding that only one of these makers is the principal, and that the others are only sureties for that one, assuming now that we stick to the construction of the paper itself? No word or suggestion in the deed of trust is pointed out to sustain the position that, on the face of that instrument, its legal effect was to make Mrs. Boughton's land any more a security for her husband than for the other signers of the note. That effect could be given it only if the law were such that she might mortgage her land to secure a debt of her husband, but not to secure the debt of any one else. But there is no such distinction recognized by the law of Missouri. If a wife, at the time of the deed in question (1888), joined her husband in a conveyance of her legal estate, in the manner prescribed by the statute touching such instruments (Rev. St. 1879, sec. 3296), the conveyance could as validly secure a debt of a third party as a debt of her husband. That proposition was assumed as the basis for the judgment reached in Rines v. Mansfield (1888) 96 Mo. 394, 9 S.W. 798; and there can be no doubt that it is a sound statement of the law in force in 1888. There was nothing in our statute law at that time to forbid Mr. and Mrs. Boughton from mortgaging her land to secure the debt of third persons, any more than there was to prevent them from mortgaging it to secure a debt of her husband. That they might mortgage it, in proper form, for the latter purpose, is settled in this state. Hence we consider that, by the deed of trust, Mrs. Boughton bound her land as security to respond to the promise of the note as it stands, but not to respond for one only of the makers of that note.
2. We then come to the other contention, as to the admissibility of oral evidence, in such case as this, to show that, as between themselves, Mr. Boughton was the principal debtor, and the other signers of the note were his sureties. My Brother Gantt holds that it "was entirely competent" to receive such evidence, as against the defendant. We respectfully differ from that declaration. We have nothing to do now with the question of the competency or relevancy of such evidence in a controversy between the parties to the note, and the discussion of such a question would be wholly foreign to the issues in the actual case at hand. If, on the face of the deed of trust, Mrs. Boughton's land was security, and all the makers of the note were principals, that sequence in the order of liability could not be broken by oral evidence, as against her. The deed of trust was made in 1888, and her rights thereunder were then fixed. The property was not her separate estate. She could only bind her legal estate by the methods sanctioned by the law. Her rights and liabilities under the deed of trust were measured by its terms. They cannot be properly enlarged as to her by oral evidence to the effect that some of those who are stated in the deed of trust to be makers of the note are in reality (as between themselves) only sureties. As against the rights of a married woman to her legal estate, such evidence is plainly inadmissible in this state. That rule of law is so well settled in Missouri by prior decisions that it is not necessary to do more than to refer to a few of them. Shroyer v. Nickell (1874) 55 Mo. 264; Hagerman v. Sutton (1887) 91 Mo. 519, 4 S.W. 73; Gwin v. Smurr (1890) 101 Mo. 550, 14 S.W. 731; Meads v. Hutchinson (1892) 111 Mo. 620, 19 S.W. 1111.
The plaintiff's case, therefore, must at last be brought to book upon the interpretation of the deed of trust. In our opinion, with all due respect to the views of our dissenting brethren, when we reach that point the result that should follow seems very plain. All the signers of the note are primarily liable to pay it before resorting to the wife's legal estate, conveyed to secure that note, as described in the deed of trust. We hold that the conclusion reached in the first division should not be disturbed; and, approving the opinion there delivered, we direct that the circuit judgment be reversed, and the cause remanded, as then ordered.
Gantt J. -- (dissenting). The action is ejectment. The defense set up in the answer is that plaintiff's claim to the lots in suit depends wholly upon a foreclosure of a deed of trust executed by himself and her husband George N. Boughton to F. M. Ladd as trustee to secure a note of her husband and J. W. McCollum, the plaintiff herein, Thomas J. Ulen, and E. J. Malone. That she, defendant, was not a party to the said note and received none of the consideration; that she was at most but a guarantor for the makers of said note including the plaintiff herein; that the note had been fully paid off by plaintiff and that if not, all of the makers are solvent and there was no occasion to resort to a sale of her lots. That the sale was without authority of law and void.
I. So much of the answer as avers that defendant was not a party to the note secured by her deed of trust executed jointly with her husband and received none of the consideration for which the same was executed, constitutes no defense to this action. It has been repeatedly ruled in this state that a married woman may, jointly with her husband, execute a mortgage or deed of trust, conveying her land to secure his sole debt, and appoint a trustee to sell the same on default and it would be operative even though her undertaking as to the note itself was void. Schneider v. Staihr, 20 Mo. 269; Hagerman v. Sutton, 91 Mo. 519, 4 S.W. 73; Meads v. Hutchinson, 111 Mo. 620, 19 S.W. 1111; Comings v. Leedy, ...
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