Orr v. Rode

• Decision Date: 16 June 1890
• Citation: 101 Mo. 387,13 S.W. 1066
• Parties: ORR v. RODE et al.
• Court: Missouri Supreme Court

13 S.W. 1066

101 Mo. 387

ORR v. RODE et al.

Supreme Court of Missouri.

June 16, 1890.

MORTGAGES — TRUSTS — EVIDENCE — LIMITATION OF ACTIONS — PLEADING — PARTIES — APPEAL.

1. Decedent, being indebted, conveyed land to a trustee in trust to enable the latter "to sell such parts of said property as may be desired to settle and satisfy said debts, * * * and, in order to settle said debts, he may give his individual notes for the same, and execute a mortgage on the before-described lands and lots, or any part thereof, to secure the same, upon such terms * * * as to him may seem proper and advisable." Held, that the deed authorized the trustee to borrow money to meet such debts, and to give his individual note therefor, secured by a mortgage on the land.

2. In a suit to foreclose such a mortgage, evidence on the part of the heirs of the grantor in the deed of trust, that when the note was executed by the trustee all the debts, to settle which the trustdeed was given, were paid, is inadmissible, since Rev. St. Mo. 1879, § 3937, provides that no person who in good faith pays money to a trustee authorized to receive it shall be responsible for the application of such money, nor shall the right or title derived by him from such trustee, in consideration of such payment, be called in question in consequence of any misapplication by such trustee.

3. In such case, plaintiff is competent to testify as to transactions between him and the trustee in regard to the execution of the note and mortgage, though the grantor in the deed of trust is dead. The statute regulating the admissibility of the testimony of interested persons, where the adverse party is dead, does not apply.

4. The supreme court can on appeal amend a judgment by striking out the names of parties erroneously joined in the suit, and affirm it as to the remaining parties. Rev. St. Mo. 1889, § 2101, provides that, after final judgment, the court may amend, in affirmance of such judgment, any record or other proceedings in the cause by striking out the name of a party.

5. The bar of the statute of limitations is not available, unless it is specially pleaded.

6. In Missouri, 10 years' possession of the property, adverse to the mortgagee, is necessary to bar a suit to foreclose the mortgage.

Error to circuit court, Buchanan county; JOSEPH P. GRUBB, Judge.

This action was commenced by the plaintiff, October 30, 1880, against the children of John H. Rode, deceased, who are the sole devisees, (and the husbands of such of them as were married women,) and James W. Strong, Ira Brown, and others, to foreclose a deed of trust in the nature of a mortgage executed by defendant Strong, dated April 3, 1867, purporting to convey certain lands described, in Buchanan county, Mo., to defendant Brown, in trust to secure the payment of a promissory note of the same date, whereby defendant Strong promised to pay to the plaintiff, one year after that date, $4,000, with interest at 10 per centum per annum. On the back of this note are the following indorsements: "Paid on this note $210 interest, Nov. 16, 1874. October 23d, 1875, Cr. by Weatherby notes, $351; Cr. by Chesmore, $10.00." The pleadings in the case need not be fully given. The answers of certain of the defendants, besides general denials, set up the statute of limitations. The deed of trust sought to be foreclosed in this proceeding was executed by defendant Strong pursuant to supposed authority conferred by an earlier conveyance of John H. Rode, upon the construction of which the case chiefly turns. The language of the deed last mentioned, bearing directly on the pending controversy, is as follows: "To have and to hold the same, together with the appurtenances thereunto belonging, to the said party of the second part, [Strong,] and his successors and assigns, forever. This conveyance is made in trust, however, for the following uses and purposes; that is to say: That whereas, the said John H. Rode is now indebted to divers persons; and whereas, several judgments are now of record in said county of Buchanan, and which are liens upon the real estate and property hereby conveyed, and said conveyance is made to enable the said party of the second part to sell such parts of said property as may be desired to settle and satisfy said debts, and the said party of the second part is hereby empowered by the parties of the first part to make any arrangements which he may deem advisable with any of the creditors of the said John H. Rode, and in order to settle said debts he may give his individual notes for the same, and execute a mortgage on the before-described lands and lots, or any part thereof, to secure the same, upon such terms, and payable at such times, as to him may seem proper and advisable; and he is also authorized to sell and convey any part of said property or real estate for such fair price as he may deem advisable for deferred payments of any of said indebtedness, selling the unimproved town lots first, — that is, the lots having no dwelling-house on first, and the whole of the town lots before selling the said tracts of land or any part thereof, and continuing to sell such parts as may be proper and necessary, until all of the said debts, which are liens on said real estate, are paid, and then such other debts as may now exist against said Rode, paying his security debts last; and it is further understood, directed, and agreed that, after said debts are paid, said lands are not to be disposed of or sold by said party of the second part, unless it is to reconvey the balance thereof to the parties of the first part, or to convey the same by their written request or concurrence in writing."

The cause was tried by the court. Several of its rulings are the subject of exceptions that will be noted, with other material matters, in the progress of the opinion of the court. The plaintiff was examined on his own behalf as a witness, and his testimony (referred to in the opinion) was as follows: "William Orr, the plaintiff, called in his own behalf, being duly sworn, testified as follows: Direct Examination. Questions by Mr. White. Question. You are the plaintiff in this case? Answer. Yes, sir. Mr. Brown. We object to Mr. Orr's being permitted to testify here in the case at all. He is the opposite party, and the pleadings show that Mr. Rode is dead. We think he is an incompetent witness. The Court. The objection is overruled. To which ruling defendants then and there excepted. Q. Where do you live? A. I live in Maysville, Mo. Q. How long have you lived there? A. I come there in 1854. Q. Been living there ever since? A. Yes, sir; close to there. I don't live in town all the time, but I live there and around there. Q. Lived there in 1867? A. Yes, sir. Q. Where you acquainted with J. W. Strong? A. Yes, sir. Q. State, Mr. Orr, the circumstances which led to you making this loan in question, fully. A. Well, sir, Mr. Strong came down there to court, and asked me if I had any money to lend. `Well,' says I, `I don't know how.' He found out I had some money here in Mr. Beattie's bank, and he called my attention to it, and told me that it might as well be drawing me interest as to be laying there. I told him I did not know whether I cared about lending it or not. He insisted on me lending it, and I finally came to the conclusion that I would lend it, providing he gave me security, and he told me that he wanted it for Mr. Rode. Mr. Brown. We object to him being permitted to testify to the remarks that he made to Strong, and we wish to save an exception to the ruling of the court on that specific objection. The Court. I can't see where this testimony will lead to. I don't see its relevancy as yet. Mr. Brown. We think that he is incompetent to testify. The Court. So far as anything that took place between him and Mr. Rode, as a friend, he is unquestionably incompetent, and I am unable to see any relevancy; but so far as any conversation between himself and Mr. Strong, his friend, I don't see what harm it can do. I will hear it out, anyway, and I will take it from me by instructions, if necessary. Q. Did not Mr. Vories ask him if he would not let Mr. Strong have the money? Mr. Brown. We object to his stating what Henry Vories may have said, on the ground of irrelevancy; Mr. Vories being dead. The Court. Well, that objection is sustained. Mr. White. We except. Mr. White. We offer to prove that William Orr, prior to making this loan, consulted with Henry M. Vories, the agent and advisor of John H. Rode, as testified to by Allen H. Vories; that in that conversation Henry M. Vories told William Orr that the sum of four thousand dollars was needed by John H. Rode to pay off his debts; that in the same conversation H. M. Vories told Wm. Orr that Strong had the power and right to borrow this from John H. Rode, and under the deed of trust in evidence, and in consequence of this statement, and not until then, did Mr. Orr loan the money. The Court. You will not be permitted to show this by this witness. Q. State if you loaned the money on the note and deed of trust, as read in evidence, to Mr. Strong. A. Yes, sir; I gave my check on the bank for $4,000, and he got the money, — at least, he told me he did. I seen that they charged it to me in my account. Mr. Brown. We object to that, as incompetent,...