Robertson v. Vandalia Trust Co.
| Citation | 66 S.W.2d 193,228 Mo.App. 1172 |
| Parties | G. W. ROBERTSON, APPELLANT, v. VANDALIA TRUST COMPANY, AND S. L. CANTLEY, COMMISSIONER OF FINANCE, RESPONDENTS |
| Decision Date | 03 January 1934 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of Audrain County.--Hon. W. C. Hughes Judge.
AFFIRMED.
Judgment affirmed.
W. W Botts for appellant.
(1) "If a grantee takes a deed containing a recital that the land is subject to a mortgage which the grantee assumes and agrees to pay, a duty is imposed on him by the acceptance and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie." Heim v. Vogel, 69 Mo. 529; Keifer v. Shackett, 85 Mo.App. 452. (2) A parol agreement to assume and pay a mortgage debt on the land at the time of conveyance is binding on the grantee. McFarland v. Melson, 20 S.W.2d 63. (3) Where a creditor accepts from a debtor a new note instead of an old, or any form of written contract instead of a prior unwritten contract or obligation,--novation, by the substitution of a new obligation, takes place. 21 Am. and Eng. Ency. of Law (2d) 663. (4) When a grantee accepts a deed he is presumed to know what it contains, and if it contains a mortgage assumption clause, he must promptly repudiate it, or he will be bound thereby. Shields v. McClure, 75 Mo.App. 631; Central Trust Co. v. Taylor, 289 S.W. 658; Citizens Bank of Springfield v. Thomas, 264 S.W. 86. (5) The equitable principle of laches or estoppel may be interposed against a claim that a contract is invalid in a suit at law. Shields v. McClure, 75 Mo.App. 631; Smith v. Washington, 88 Mo. 475. (6) Where parties have reduced their contract to writing it will be conclusively presumed, in the absence of fraud, accident or mistake, that such writing expresses the extent and manner of their undertaking. Penn v. Brashier, 65 Mo.App. l. c. 27; Morgan v. Porter, 103 Mo. 135. (7) Parol contemporaneous evidence is not admissible to contradict the terms of a valid written instrument. James v. Clough, 25 Mo.App. 147.
Drake Watson for respondents.
(1) Plaintiff, in this case must recover, if at all, upon the cause of action pleaded in his petition. The petition counts upon the stipulation in the deed from John A. Brooks to Vandalia Trust Company, and which stipulation provides that the grantee assumes and agrees to pay the Robertson note. Plaintiff must stand or fall on this cause of action. Henry County v. Citizens Bank, 208 Mo. l. c. 225-6; Mark v. Cooperage Co., 204 Mo. l. c. 262; Link v. Vaughn, 17 Mo. 585; Alexander v. Wabash Railroad Co., 38 S.W.2d 545; Gurley v. The Mo. P. Ry. Co., 93 Mo. 445; Price v. Chicago M. & St. P. Ry. Co., 40 Mo.App. 189; Leslie v. The W. St. L. & P. Ry. Co., 88 Mo. 50; Summer v. Rogers, 90 Mo. 324; Reed v. Bott, 100 Mo. 62; Whipple v. Peter Cooper B. & L. Assn., 55 Mo.App. 554; Steinberg v. The Phoenix Ins. Co., 49 Mo.App. 255; Compton v. Railroad, 147 Mo.App. 414; Smith v. Pullman Co., 138 Mo.App. 238; Collins v. Hutchings, 194 S.W. 733; Nave v. Diekman, 208 S.W. 273; Sevier v. Harmon, 261 S.W. 348; Duncan v. Gage, 250 S.W. 647; Jennings v. Cherry, 257 S.W. 438; Grafeman Dairy Co. v. Northwestern Bank, 288 S.W. 359; Hecker v. Bleish, 3 S.W.2d 1008; Gary v. Averill, 12 S.W.2d 747; Fields v. Thomas, 286 S.W. 133; Oaks v. Short, 292 S.W. 738; Casteel v. Dearmont, 299 S.W. 816; Gash v. Mansfield, 28 S.W.2d 127; Hall v. St. L. & S. F. Ry. Co., 28 S.W.2d 687; Dimick v. Snyder, 34 S.W.2d 1004; Phillips v. Thomas, 35 S.W.2d 382. (2) The assumption clause in the deed from Brooks to the defendant Trust Company for claimed breach of which plaintiff here seeks to recover and which under the pleadings is his sole basis of recovery, was inserted in the deed by mutual mistake, is a nullity, was never agreed to by the parties to the deed (assuming there were two parties, which we deny) and the true contract may be shown by parol. Citizens State Bank of Springfield v. Thomas, 264 S.W. 86; McFarland v. Melson, 20 S.W.2d 63; 27 Cyc. 1347; Drury v. Hayden, 111 U.S. 223, 4 S.Ct. 405, 28 L.Ed. 408. (3) There is only one party to the deed containing the assumption clause, Brooks was the Vandalia Trust Company. There must be at least two parties to a contract, else there is no contract. There cannot be a meeting of the minds when there is but one party of one mind. The Vandalia Trust Company could not contract with itself. 13 C. J. 261, sec. 43; Watson Seminary v. County Court, 149 Mo. 57, l. c. 69; Faulkner v. Lowe, 2 Exch. 595-597; Eastman v. Wright, 6 Pick (Mass.) 316; Gorham v. Meacham, 63 Vt. 231, 22 A. 572, 12 L.R.A. 676; Collins v. Tilton, 58 Ind. 374. (4) There was no consideration supporting the deed from the naked trustee, Brooks, to the defendant trust company, on which alleged contract plaintiff seeks to recover and none is pleaded. Stanton v. Edman, 28 S.W.2d 425; Little Rock Surgical Co. v. Bowers, 42 S.W.2d 367; 9 Cyc. 717, 316; Swift v. Central Union Fire Ins. Co., 216 S.W. 935; 41 C. J. 727, sec. 773. Under the Statute of Uses (assuming the other elements were here which are lacking), Section 3103, Revised Statutes 1929, the title to the land vested in the defendant trust company when Brooks received the deed from Smith in 1922. And the conveyance from Brooks to the defendant in 1926 was nothing more than the defendant had a right to get without paying for it and they did not pay anything for it. This would be true if Brooks had not been connected with the bank officially. Bloomenthall v. Bloomenthall, 251 Mo. 693, l. c. 703; Carter v. Long, 191 Mo. 701, l. c. 710; Shelton v. Harrison, 182 Mo.App. 404, l. c. 419. (5) Failure of consideration, the explanation of the circumstances under which this stipulation happened to appear in the deed are all open to explanation by parol testimony. "The grantee is not estopped by the fact of its having assumed the payment of the mortgage debt to show the failure of the consideration upon which the assumption agreement was based. . . ." 41 C. J. 727, par. 774; Finley v. Williams, 29 S.W.2d 103, 325 Mo. 688; Stambaugh v. Hall, 30 S.W.2d 160. (6) Parol evidence is admissible to show fraud or mistake in the insertion of the assumption clause. 41 C. J. 728, 729, secs. 775, 777; McFarland v. Melson, 20 S.W.2d 63; Shields v. McClure, 75 Mo.App. l. c. 639. (7) Novation by substitution of a new debtor consists of mutual agreement among creditor (Robertson), immediate debtor (Smith), and intended new debtor (Trust Co., defendant), whereby the latter's liability is accepted in place of the original debtor and in full discharge of the debt. Farmers Bank of Billings v. Oetker, 31 S.W.2d 568, 224 Mo.App. 664; Swift & Co. v. Madden, 35 S.W.2d 59; Shapiro v. Childs Co., 17 S.W.2d 677, 222 Mo.App. 1126. (8) Novation is never presumed but must be both pleaded and clearly proven and the burden of proof is always on the one alleging novation. Farmers Bank v. Oetker, supra. (9) This is a law case, tried by agreement before the court, sitting as a jury, and the finding of the court is conclusive if there was any evidence to support it and under the evidence it is abundantly supported. Walther v. Null, 233 Mo. 104, 134 S.W. 993; First Natl. Bank v. Fulton, 28 S.W.2d 368; Central States Savings & Loan Ass'n v. Fidelity & Guaranty Co., 30 S.W.2d 774, 224 Mo.App. 573; Central Missouri Trust Co. v. Taylor, 289 S.W. 658. (10) Under Section 952, Revised Statutes 1929, plaintiff cannot complain as to any failure to find or claimed erroneous finding of fact by the trial court because it nowhere appears that plaintiff requested special findings of fact and conclusions of law of the court and further, because no exceptions were noted and saved by plaintiff to any findings of fact. Hamilton v. Armstrong, 120 Mo. 597, 25 S.W. 545; Loewen v. Forsee, 137 Mo. 29; Young v. Stephens, 66 Mo.App. 222; Steele v. Johnson, 96 Mo.App. 147, l. c. 156; Freeman v. Hemenway, 75 Mo.App. 617; State ex rel. v. Lusk, 93 Mo.App. 680. (11) Finding of fact by the court when not requested is not within the statute. Kreiger v. Investment Co., 253 S.W. 483. Plaintiff in this case must recover, if at all upon the cause of action pleaded in his petition. The petition counts upon the stipulation in the deed from John A. Brooks to Vandalia Trust Company, and which stipulation provides that the grantee assumes and agrees to pay the Robertson note. Plaintiff must stand or fall on this cause of action. Henry County v. Citizens Bank, supra. Mark v. Cooperage Co., supra, in which last case the supreme Court of this State speaking through Judge LAMM said: "Proof and allegation must correspond and no recovery can be had on a new or different cause of action than that chalked out in the written pleadings."
This suit was brought by appellant (plaintiff) to recover the balance due on a note secured by a deed of trust on a tract of land located in Ralls County, Missouri. A jury being waived, the cause was tried before the court, resulting in a finding and judgment for defendants. Plaintiff appeals.
The Vandalia Trust Company is a Missouri corporation, successor to the Vandalia Banking Association. S. L. Cantley, as Finance Commissioner of Missouri, was in charge of its assets for the purpose of liquidation. At the trial D. R. Harrison was, by consent of the parties, substituted for Cantley. Among the aforesaid assets was the following real estate:
"The Southwest Quarter of Section Thirty-two (32), Township Fifty-three (53), of Range Five (5) West, in Ralls County, Missouri, containing 160 acres more or less."
Plaintiff's petition alleged in substance that on January 1, 1920, H. D Smith, the owner of said land, conveyed it to C. G. Daniels, as trustee, to secure to plaintiff the payment of a note for...
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