Meier v. Blume

• Decision Date: 31 October 1883
• Parties: MEIER, Appellant, v. BLUME.
• Court: Missouri Supreme Court

80 Mo. 179

MEIER, Appellant,

v.BLUME.

Supreme Court of Missouri.

October Term, 1883.

Error to Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Wm. S. Shirk for plaintiff in error.

Hamilton & Fisher for defendant in error.

SHERWOOD, J.

The petition in this cause in substance states that on October 1st, 1877, the defendants John B. and Dinah Blume borrowed of the plaintiff Meier $1,000, and to secure its payment executed a mortgage on inlot 560 of the City of Jefferson, with the usual conditions; that default was made in the payment of the note and all interest, and prays a foreclosure of said defendants' equity of redemption, and that the property be sold for the payment of the debt and interest, etc.; that defendant Hackman claims some interest in said property adverse to plaintiff and the defendants Blume and Blume, and that plaintiff is informed and believes that on the 28th day of January, 1876, the defendants Blume executed a deed of trust to one Meyers as trustee of defendant Hackman to secure a debt on a lot of ground described in said deed of trust as lot 566, at the corner of McCarty and Mulberry streets, and that plaintiff is informed and believes that it was the purpose and intent of the defendant at the time to make said trust deed a lien on lot 560 at the corner of McCarty and Mulberry streets, and that it was by mistake that the same was made to read lot 566 instead of 560; but at the time plaintiff made his loan and took his mortgage he had no notice or knowledge of said mistake, and no notice of any lien or incumbrance on said lot 560 in favor of said Hackman; that at the time plaintiff made his loan he employed and paid the recorder of land titles to examine the records and ascertain whether there was any incumbrance on lot 560, and said recorder informed him there was not; whereupon he took his said mortgage in entire ignorance of the mistake in Hackman's deed of trust. The prayer of the petition is in substance that plaintiff's mortgage be declared a prior lien on said lot to the equitable lien of Hackman's said deed of trust, and that the surplus arising from the sale of said lot 560 under plaintiff's mortgage over and above plaintiff's debt, interest and costs, be applied upon the debt of said Hackman.

The defendant Hackman, in his answer, after averring a want of knowledge as to the making of the mortgage to plaintiff, sets out the same facts substantially in relation to the making of a deed of trust by the Blumes to Meyers as trustee for him, and the mistake therein, and alleges that the mistake in describing the lot as number 566 was the mistake of the scribe or justice of the peace who wrote and filled out said deed of trust. The answer then proceeds to deny the allegation that plaintiff had no notice of the mistake and no notice or knowledge of the existence of any lien or incumbrance in favor of defendant on said lot 560, but alleges that plaintiff took his mortgage with full knowledge and notice of the mistake in Hackman's deed of trust, and with full and complete notice and knowledge of the existence of Hackman's prior lien on said lot 560. Judgment is then prayed that Hackman's deed of trust be reformed and corrected so as to read lot 560 instead of 566, and that it be declared the first lien thereon, and for further relief.

On the trial, the court having ruled that the burden of proving that plaintiff had notice of Hackman's equitable lien was on the defendant Hackman, Hackman introduced in evidence his trust deed. He then introduced as a witness in his behalf the defendant John B. Blume, who testified in substance as follows: That he borrowed $600 from Hackman; that he intended to secure it by a deed of trust on lot 560, corner of McCarty and Mulberry streets, but by mistake the lot was described as 566; that he never owned lot 566, and that lot was not at the corner of McCarty and Mulberry streets; that he afterward borrowed $1,000 from Meier; plaintiff left it with his father, Louis Meier, with whom he dealt in arranging the matter; that he told the old man, Louis Meier, before the mortgage to the plaintiff was given, that “he had $600 on it already,” and the old man said: “I reckon that makes no difference;” that he said nothing to the old man about having given a mortgage or deed of trust on it, nor was Hackman's name mentioned, nor was lot 560 mentioned, and that he (Blume) did not then know that there was any mistake in hackman's trust deed.

Plaintiff then offered in evidence his mortgage sued on, and then placed on the stand his father, Louis Meier, who testified in substance as follows: That plaintiff left the money for Blume ($1,000) with him to give to Blume if the property was all right. As he and Blume came up to town to make the mortgage they talked about Blume's business, and Blume said: “I have some debts, amounting to about $600, on the property.” I said: “I reckon that makes no difference.” He said nothing about a mortgage or...