McCormick v. Parsons
| Decision Date | 29 March 1906 |
| Citation | 92 S.W. 1162,195 Mo. 91 |
| Parties | MARY J. McCORMICK v. ELSIE F. PARSONS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Andrew F. Evans, Judge.
Affirmed.
John A Sea for appellants.
(1) The court should, at time of hearing the cause, when the objection was made by defendants as to the admission in evidence of the various records and proceedings in former suits, have passed upon said objections at that time and not withheld its decision, in fact virtually making no decision so far as record shows. Appellant is wholly unable to state now whether any of such evidence was admitted or excluded, or what effect any of it had on the finding of the court. Since the court made no ruling on the evidence objected to appellant is compelled to assume a burden both in the court below and in the court here that is both unjust and inequitable. This is reversible error. Moechel v Heim, 134 Mo. 576; Asbury v. Hicklin, 181 Mo. 658. (2) If the court finally admitted the records, evidence and proceedings of former litigation between McCormick and Parsons, or these appellants, it erred in this: said records, evidence and proceedings were irrelevant and immaterial in the absence of evidence on the part of plaintiff that this claim of appellants was expressly included in the terms of such compromise settlement. Appellee claiming same to be included, the burden is on him to show that fact. Perry's Admr. v. Roberts, 17 Mo. 36; Wade v. Hardy, 74 Mo. 400. (3) In addition, the burden was on appellee to show that the personal representatives of Parsons, settling a claim against the personal estate, had authority to make a settlement including rights of these appellants to their interests in the land. Relying upon an instrument executed by agent, he must prove agent's authority. Sone v. Palmer, 28 Mo. 539. (4) Contract to release is part of the general contract under which appellee claims. If by any fair construction an instrument can be sustained in all its parts, that construction should be given. Wiggins Ferry Co. v. Railroad, 128 Mo. 224; Glover v. American Casualty Co., 130 Mo. 173; Belch v. Miller, 32 Mo.App. 387. The court will ascertain the meaning of the contract from all the provisions and not from single words and phrases, and when the intention is thus ascertained, that intention will be effectuated unless it violates some inexorable rule of law. Meyer v. Christopher, 176 Mo. 580. Words will be taken in their plain, common, ordinary and usual sense. Missouri Edison Electric Co. v. Bry, 88 Mo.App. 135. It needs no authority to sustain the proposition that an undivided interest can be held in lands. The contract shows an incumbrance of $ 435 on each acre of land. It provided that on payment of $ 600, one acre should be released from the lien of the deed of trust. A release is "the giving up or abandoning of a claim or right to the person against whom the claim exists or the right is to be enforced." Winter v. Railroad, 160 Mo. 175. A release extinguishes a pre-existing right. Equitable Securities Co. v. Tolbert, 22 So. 762; 7 Words and Phrases, p. 6060. There was thirty-nine acres of land; the payment of $ 600 extinguished the lien on one acre, or one thirty-ninth of the land. The payment of $ 9,500 extinguished the lien on fifteen and five-sixths acres, undivided, it is true, but easy of apportionment. The fact that the purchaser was obliged to pay $ 600 per acre for land incumbered for $ 435, is proof that both the seller and purchaser intended this payment to be the price of an absolute release of the land from the lien. It is impossible to reconcile such payment at such price with any other intent. Neale v. Dempster, 179 Pa. 569. Appellant made payment of $ 600 which, under terms of deed, pro tanto discharged the indebtedness. As to plaintiff, when his secured indebtedness had been met and discharged under the terms of the deed, the deed of trust as to one acre became a lifeless instrument. Snow v. Bliss, 174 Mo. 167. (5) The right to the release is not limited; it runs with the land and is not forfeited by being in default as to other payments. Gammel v. Goode, 103 Iowa 301. By its terms the covenant, or obligation, to release is unconditional. The demand for release was made before the completion of sale, and release should have been made. Vawter v. Crafts, 41 Minn. 14; Lane v. Allen, 162 Ill. 426.
Peak & Strother and William D. Majors for respondent.
(1) There was no error in admitting in evidence the testimony of Lyman Parsons preserved in the bill of exceptions in the attachment suit of McCormick vs. Parsons. R. S. 1899, sec. 3149. (2) Even if the evidence were "irrelevant and immaterial," as defendants contended in their objection to its admission, such admission, in this equity suit, was not reversible error. Kleimann v. Geiselmann, 45 Mo.App. 501, 114 Mo. 443; Evangelical Synod v. Schoeneich, 143 Mo. 658; Sheridan v. Nation, 159 Mo. 41. (3) The judgment of the circuit court in the attachment suit conclusively fixed the amount due McCormick from the estate of Lyman Parsons, deceased, and hence established the validity of the sale under the deed of trust; because such amount was dependent upon that sale. Moody v. Peyton, 135 Mo. 482; Jamison v. Wickham, 67 Mo.App. 575. (4) The agreement for a release contained in the deed of trust is equivalent to a contract to convey land; and is void for the reason that it is so vague and uncertain in its terms, and particularly in its description of the property to be released, as to be altogether incapable of specific enforcement. Bell v. Dawson, 32 Mo. 87; Alexander v. Hickox, 34 Mo. 500; Carter v. Holman, 60 Mo. 498; Freed v. Brown, 41 Ark. 495; Thompson v. Gordon, 72 Ala. 455; Armstrong v. Short, 95 Ind. 328; Palmer v. Albee, 50 Iowa 429; Moulton v. Egery, 75 Me. 485; Breoid v. Munger, 88 N.C. 297. (5) Even if this agreement for a release were such as could be enforced, still, by its very terms it would only bind the parties of the first and third parts named in the deed of trust. Pierce v. Kneeland, 15 Wis. 672. (6) By the terms of the deed of trust, itself, upon the default of Tuttle and wife and Parsons, in the payment of the balance of principal and interest due on the second note, McCormick was entitled to require the trustee to sell, and the trustee was bound to sell, all the land then unreleased, if such sale was necessary to pay the note and costs of sale. Reed v. Jones, 133 Mass. 116; Werner v. Tuch, 52 Hun 272; Bull & Cozzens, Petitioners, 15 R.I. 534; McComber v. Mills, 80 Cal. 111; Bank v. Hiller, 106 Mich. 118; Chrisman v. Hay, 43 F. 555. (7) The trustee's deed conveyed to McCormick the legal title to the land. The only remedy left to defendants, if any, was a suit to redeem. If their answer is equivalent to such a suit, they were and are entitled to no relief unless they are willing to pay the full amount of principal, interest and costs of sale due McCormick. Garland v. Watson, 74 Ala. 325; Collins v. Riggs, 81 U.S. (14 Wall.) 491; Kline v. Vogel, 11 Mo.App. 211, 90 Mo. 239; Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemers, 120 Mo. 73; Springfield Engine, etc., Co. v. Donovan, 120 Mo. 423.
This suit was instituted in the circuit court of Jackson county by James P. McCormick in his lifetime, for the purpose of determining and quieting the title to certain real estate lying in said county, and described as being all of the northeast quarter of the southwest quarter of section 34, township 50, range 20, except one acre out of the northwest corner thereof.
The plaintiff obtained judgment in the circuit court, from which judgment defendants appeal. Since the appeal to this court the original plaintiff died, and the cause has been duly revived in the name of his widow, his legatee.
On March 14, 1888, Herbert E. Tuttle and Ida C. Tuttle, his wife, who were the owners of the land in suit, executed to Archibald C. Majors and Erastus Smith, two negotiable promissory notes, each for the sum of $ 8,500, and due on or before one year and on or before two years after date, respectively, with eight per cent compound interest from date, said notes being given for part of the purchase price of said land. To secure the payment of said notes they executed a deed of trust, dated March 14, 1888, whereby they conveyed said land to William D. Majors, as trustee for said Smith and Majors. This deed of trust, which was duly recorded in the office of the recorder of deeds at Independence, Jackson county, Missouri, contained this provision: "And for every $ 600 that is paid on said notes said parties of the third part obligate themselves to release one acre of the tract hereby conveyed from the lien of this deed of trust, said notes being given as part of the purchase money of said tract of land."
Shortly after the execution of said notes, and before their maturity, they were for value sold, indorsed and delivered to James P. McCormick, the original plaintiff herein.
Thereafter, on the 21st day of November, 1888, Tuttle and wife conveyed the said tract of thirty-nine acres, together with another tract of four acres, to Lyman F. Parsons, the ancestor of the defendants in this suit, by warranty deed duly recorded in the office of said recorder of deeds at Independence, on December 14, 1888, which said deed contained the following provision: "Said forty-three acres of land are hereby conveyed subject to the incumbrances placed thereon by the said H. E. and I. C. Tuttle, and of record in the said county of Jackson, all of which incumbrances are assumed by said grantee herein."
On the first day of September, 1894, the trustee named in said deed of trust sold, at public sale, under the terms of said trust said...
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