Orr v. How

• Decision Date: 28 February 1874
• Citation: 55 Mo. 328
• Parties: WILLIAM ORR AND ALFRED A. CHESMORE, Respondents, v. LUTHER B. HOW, AND ANN P. HOW, Appellants.
• Court: Missouri Supreme Court

55 Mo. 328

WILLIAM ORR AND ALFRED A. CHESMORE, Respondents,

v.LUTHER B. HOW, AND ANN P. HOW, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from De Kalb Circuit Court.

S. G. Loring, for Appellants.

I. The mortgage deed was void for uncertainty of the description of land. The ambiguity was apparent upon the face of the instrument. (Hardy vs. Matthews, 38 Mo., 124.)

II. The opinion of Pritchard, that he could find the land from the description on the mortgage deed, was inadmissible. (Schultz vs. Lindell, 30 Mo., 320; Blumenthal vs. Ralls, 24 Mo., 113.)

Strongs & Hedenburg, for Respondents.

I. The caption of the petition shows both the firm and individual names of respondents, and the body of the petition shows that respondents were partners, and were sueing as such; this is enough. (Higgins vs. Han. & St. J. R. R. Co., 36 Mo., 431; State vs. Patton, 42 Mo., 530, id., 537.) Besides this point is waived by the answer.

II. The evidence of John Pritchard, a surveyor--who is not contradicted-- showed that the description of the land was definite, certain and well known. There was no error in admitting his evidence, and the note and mortgage.

ADAMS, Judge, delivered the opinion of the court.

This was a suit to foreclose a mortgage given by the defendants, to secure a note which had been executed by the defendant, Luther B. How, to the plaintiffs.

The defendant Ann P. How, the wife of Luther B. How, joined in the mortgage, and was made a defendant. There was no objection to her joinder.

The plaintiffs were co-partners under the name of Orr & Chesmore, which is shown by the caption of the petition. The note was executed to them by their partnership name, and the mortgage was given to them in their partnership name.

The defendants, on the trial, objected to the introduction of the note on the alleged ground of a variance between it and the note set forth in the petition. But there seems to be no substantial variance, and the court committed no error in admitting the note as evidence. The defendants also objected to the mortgage on the ground that there was no description of the property conveyed, and because it was made to the plaintiffs by their firm name. This objection was overruled, and the defendants excepted. The plaintiffs introduced a witness who was a surveyor, and he testified that he had surveyed the lot of land, and could find it from the description in the mortgage deed. This evidence was objected to by the defendants, but the objection was overruled, and the defendants excepted. The fact that the mortgage was given to ...