Stark v. Kirkley

• Decision Date: 03 March 1908
• Citation: 108 S.W. 625,129 Mo. App. 353
• Parties: STARK et al. v. KIRKLEY et al.
• Court: Missouri Court of Appeals

108 S.W. 625

129 Mo. App. 353

STARK et al. v. KIRKLEY et al.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. APPEAL — REVERSIBLE ERROR — PREJUDICE AN ESSENTIAL.

To work a reversal, any error must be prejudicial to the party assigning it.

2. SAME — HARMLESS ERROR — EVIDENCE.

In an action on contracts, tried to the court, any error in admitting evidence as to the amount due thereon was harmless where the amount was a mere matter of calculation which the judge could have made for himself or have had the clerk make for him.

3. MORTGAGES — EQUITABLE MORTGAGE — GRANTEE — SUFFICIENCY OF DESIGNATION.

Where one intended to mortgage his land for the price of trees, that the instrument failed in legal effect for obscurity in the designation of the grantee, "Stark Bros.," does not defeat the equitable quality of the lien on proof as to who was intended to be benefited by the mortgage.

4. ACKNOWLEDGMENT — SUFFICIENCY — CLERICAL MISTAKE.

The use of "assigned" for "signed" in an acknowledgment reciting that one known to the officer "to be the person whose name is assigned to the above contract," etc., being evidently a mere mistake of the officer, does not invalidate the acknowledgment so as to debar the instrument from record.

5. APPEAL — REVIEW — OBJECTIONS NOT MADE BELOW.

In an action to enforce an equitable mortgage against the mortgagor's purchasers, an objection to a defect in the acknowledgment, as affecting the validity of the notice imparted by recording, is unavailing when first raised on appeal, and where the answer did not show that defendants were purchasers in good faith, without notice, and for a valuable consideration, and neither defendant testified that he was a purchaser without notice of plaintiff's equities.

6. MORTGAGES — EQUITABLE MORTGAGES — RECORD — EFFECT.

Under Rev. St. 1899, § 924 [Ann. St. 1906, p. 846], providing that written instruments affecting land when certified and recorded as thereinbefore prescribed shall, from the time of filing for record, impart notice to all persons of the contents, and that subsequent purchasers shall be deemed to purchase with notice, plaintiffs, in an action to enforce equitable mortgages against the mortgagor's purchasers, proved that the purchase was made with knowledge of their rights by showing that the contracts sued on had been signed, acknowledged, and recorded before defendants' purchase.

Appeal from Circuit Court, Butler County; Jesse Sheppard, Judge.

Action by C. M. Stark and others against Alfred Kirkley, John Mangold, and Thomas Osborn. From a judgment for plaintiffs, defendants Mangold and Osborn appeal. Affirmed.

In 1893 and 1894 Alfred Kirkley was the owner of the following described real estate, situated in Butler county, Mo.: The S. E. ¼ of the S. W. ¼ of section 5, township 23, range 5 E. On June 30, 1893, plaintiff and Kirkley entered into the following contract:

"This indenture, made and entered into on this thirtieth day of June, A. D. 1893, by and between Alfred Kirkley, Harviell (P. O. four miles W. direction) of the county of Butler and state of Missouri, party of the first part, and Star Stark Bros., of Louisiana, county of Pike and state of Missouri, parties of the second part. Witnesseth, that said party of the first part, in consideration of the second parties selling and shipping to him in the fall of '93, or spring of '94, to Harviell, Missouri, railroad freight charges prepaid, seven hundred and seventy-eight (778) fruit trees, binds himself, his heirs and assigns, to plant said trees on his farm containing 40 acres, situated in Butler county, state of Missouri, and more particularly described as follows, to wit: (Here copy description in your deed in full): Southeast quarter (¼) of southwest quarter (¼) of section 5, township 23, range 5; boundaries (name adjoining owners): Marion Cox on west, and to pay to the order of said second parties their heirs or assigns one hundred and sixty-six and 86¢. ($166.86) dollars, due and payable as follows: All payments and interest hereinafter particularly specified to date from the first day of December, 1893, one-fifth in six (6) years, one-fifth in seven (7) years, one-fifth in eight (8) years, one-fifth in nine (9) years, and one-fifth in ten (10) years, with interest at the rate of six (6) per cent. per annum, and if the interest be not paid annually, to become as principal and bear the same rate of interest; the right being reserved to the said party of the first part to pay the full amount together with accrued interest at any time he may elect within the period of ten (10) years next after date last above written. And it is also understood and agreed by said first party, by his heirs and assigns, that this shall be a lien upon the above described premises or real estate, until the full amount, together with interest, shall be paid, and should said first party fail to make the payments when due, together with interest, the above described real estate, waiving all exemptions, shall be subjected to the payment of the above amount. And the said first party, for the purpose of obtaining this credit, states that the above real estate is free and clear of incumbrances and that he claims the same with a perfect title.

"In witness whereof, we have hereunto set our hands and seals this the day and year first above written.

                         "Alfred Kirkley. [Seal.]
                         "Stark Bros.   [Seal.]
                

"Witnessed by E. W. Livingston."

This instrument was duly acknowledged by Kirkley on the day of its date, and was filed and recorded in the office of the recorder of deeds of Butler county on July 12, 1893. On August 6, 1894, plaintiffs and Kirkley entered into a like contract whereby Kirkley agreed to pay plaintiffs $162 for 556 fruit trees, said $162 to be "due and payable as follows, all deferred payments and interest hereinafter particularly specified to date from the 1st day of December, 1894; one-tenth in one (1) year, one-tenth in two (2) years, one-tenth in three (3) years, one-tenth in four (4) years, one-tenth in five (5) years, one-tenth in six (6) years, one-tenth in seven (7) years, one-tenth in eight (8) years, one-tenth in nine (9) years, one-tenth in ten (10) years, with interest at the rate of six (6) per cent. per annum, and if interest be not paid annually the same is to become as principal and bear the same rate of interest." This contract charged a lien on the land as did the one of June 30, 1893, and was also duly acknowledged by Kirkley on the day of its execution, and was filed for record and recorded in the office of the recorder of deeds of Butler county on August 14, 1894. The fruit trees called for by both contracts were delivered by plaintiffs to Kirkley, and were by the latter set out on the land described. On December 23, 1896, Kirkley and wife executed and acknowledged a deed of trust to Samuel W. Foster, trustee, on the aforesaid land to secure the payment of a promissory note for $125, of even date with the deed of trust, signed by Kirkley and wife and payable to John Mangold 12 months after date. This deed of trust was duly recorded. On October 26, 1899, Foster, as trustee, sold the land under the deed of trust to John Mangold, and executed and acknowledged...