Minter v. Cupp

• Decision Date: 18 February 1889
• Citation: 98 Mo. 26,10 S.W. 862
• Parties: MINTER v. CUPP.
• Court: Missouri Supreme Court

10 S.W. 862

98 Mo. 26

MINTER v. CUPP.

Supreme Court of Missouri.

February 18, 1889.

1. EVIDENCE — BURDEN OF PROOF.

Plaintiff in ejectment claimed under a trust deed given by defendant to secure two notes to L., and alleged that the smaller note was given for the fees of plaintiff and another, as defendant's attorneys in a suit by L. against defendant, for the compromise of which the other note was given. The trustee, who was L.'s attorney, and made the compromise, had no authority to do so, and he indorsed the smaller note in L.'s name to plaintiff and the other attorney. Held, that plaintiff had the burden of proving ratification by L. of the assignment of the note, though the trust deed provided that the trustee's statements in relation to non-payment should be evidence, and though the recitals in the deed given by the trustee concerning default, etc., are made evidence by Acts Mo. 1881, p. 171, § 1.

2. PRINCIPAL AND AGENT — ACTS OF AGENT — RATIFICATION.

It was not error to refuse plaintiff's request to charge that L.'s collection of the amount of both notes and acknowledgment of satisfaction of the deed of trust were a ratification of the compromise, as defendant alleged that both notes were the consideration of the compromise, while plaintiff alleged that the consideration was the larger one only.

Appeal from circuit court, Chariton county; G. D. BURGESS, Judge.

Ejectment by H. C. Minter against Simpson Cupp. Plaintiff appeals.

Acts Mo. 1881, p. 171, § 1, provide that "whenever any real estate within this state shall have been, or shall hereafter be, sold by any trustee, or mortgagee, or sheriff, or other person acting as trustee, under a power of sale given in any mortgage or deed of trust, the recitals in the trustee or mortgagee's deed concerning the default, advertisement, sale, or receipt of the purchase money, and all other facts pertinent thereto, shall be received as prima facie evidence in all courts of the truth thereof."

Crowley & Son and A. W. Mullins, for appellant. Minter & Christian, for respondent.

RAY, C. J.

This is an ejectment suit to recover possession of 40 acres of land in Chariton county, in which, on trial, defendant obtained judgment, from which plaintiff has appealed. Plaintiff, in support of his title, put in evidence a deed of trust, dated 24th February, 1880, executed by defendant, conveying, among other land, the 40 acres in controversy to O. F. Smith, as trustee, to secure to Lee Lingo, executor of Samuel Lingo, the payment of two notes executed by said Cupp, of same date as the said deed, and delivered to said Lingo, whereby he promised to pay said Lingo $400, one for $300, due one year after date, with 10 per cent. interest, and one for $100, due 18 months after date, with 10 per cent. interest from date. The said trustee was empowered, in default of payment of said debts and interest, to sell, on notice, the land conveyed to pay said debts, and execute a deed to the purchaser, and the trust deed provided that any statement of facts or recital by the trustee in relation to the non-payment of the money secured to be paid should be received as prima facie evidence of such fact. This deed was filed for record the 24th February, 1880, and the following marginal entries were put in evidence with the deed:

"MARGINAL ENTRIES.

"The debt mentioned in this deed of trust has been paid in full, and the property conveyed therein is hereby released.

                   "January 24, 1881.                      LEE LINGO, Exr. Est. S. S. Lingo
                   "Attest: W. C. APPLEGATE, Recorder."
                

"The note for $100, due eighteen months after date, has not been paid, but was on the 24th day of April, 1880, assigned and delivered to Minter and Christian, who have the said note in their possession, and neither it, nor any part of same, has been paid.

                   "February 25, 1881.                               H. C. MINTER
                                                                    "JOHN R. CHRISTIAN
                   "Attest: W. C. APPLEGATE, Recorder."
                

Plaintiff also read in evidence a deed dated September 20, 1881, from said O. F. Smith, trustee, as aforesaid, conveying the property covered by the said trust deed of date February 24, 1880, hereinbefore mentioned, to plaintiff. The question involved in the trial below was as to the ownership of the said note for $100, and the existence of the said debt in that behalf at the time of the sale, and to satisfy which the said sale under the trust deed was claimed to be made. The oral evidence for plaintiff, which is given by said Smith and said Minter, tends to show that the $100 note, made payable to said Lingo, and included with the $300 note in the trust deed, was in fact given for a fee due from said Cupp to Minter & Christian, who were his lawyers in a suit by Lingo against Cupp to enforce a vendor's lien on land sold by said Lingo's father to said Cupp, being the 40 acres in controversy, and that the compromise of this suit, which was had, was in consideration of the $300 note only, the said note for $100 forming no part thereof; that the object of said Cupp and his said lawyers (Minter & Christian) was to save the making of additional conveyances, and to have the one...