Stark Bros. v. Martin

• Decision Date: 04 November 1907
• Citation: 105 S.W. 33,126 Mo.App. 575
• Parties: STARK BROS., Appellants, v. ED MARTIN et al., Respondents
• Court: Kansas Court of Appeals

105 S.W. 33

126 Mo.App. 575

STARK BROS., Appellants, v. ED MARTIN et al., Respondents

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Schuyler Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Judgment affirmed.

S. W Mills, John D. Smoot and Edward E. Campbell for appellant.

(1) The instrument and contract sued upon and made the basis of this foreclosure proceeding is in effect an equitable mortgage and amply sufficient as such to charge the land described therein with a lien as against all the defendants and as such should have been admitted in evidence. Stark v. Anderson, 104 Mo.App. 128; Martin v. Nixon, 92 Mo. 34; in which were cited among others, McQuie v. Peay, 58 Mo. 56; Racouillat v. Sansevain, 32 Cal. 376; case of Leiweke v. Jordan, 59 Mo.App. 623.

C. C Fogle and Higbee & Mills for respondents.

Respondents contended in the court below that the contract sued upon is not a mortgage, or a lien; there are no apt words to convey or impress a lien, if Sommer had title; it does not undertake or purport to convey any interest, or to charge the land. Nalle v. Paggi, 1 L. R. A. 33; Cole v Hughes, 54 N.Y. 345; Miller v. Noonan, 12 Mo.App. 373, 83 Mo. 343; Huling v. Chester, 19 Mo.App. 611.

OPINION

ELLISON, J.

--This action was brought to enforce a lien against real estate. The judgment was for the defendants in the trial court. The plaintiffs appealed the case to the Supreme Court on the ground that title to real estate was involved, but that court was of a different opinion and transferred the case to this court.

The pleadings in the cause are all set forth in plaintiffs' abstract of the record. There then follows this statement: "Jury waived and cause submitted to the court on the pleadings and evidence in support thereof. And upon the introduction by plaintiffs of the contract filed in said cause, the defendants object and said objections are sustained by the court. Whereupon plaintiffs take a voluntary nonsuit with leave to file motion to set same aside."

The contract thus ruled upon by the court is nowhere set out. The petition alleges that a copy of it was therewith filed, but such copy has not been preserved in the abstract. We are therefore without data whereby we might pass upon the ruling of the trial court. Furthermore, it does not appear that any exception was taken to the ruling.

Aside from this the abstract makes no distinction between the bill of exceptions and the record proper and we have no means of ascertaining which of these the recitals which are set out come under.

It appears that a motion for new trial was filed, but there is nothing to show...