Union Nat. Bank v. Barker

• Decision Date: 06 July 1898
• Citation: 145 Mo. 356,46 S.W. 1096
• Parties: UNION NAT. BANK OF CHICAGO v. BARKER et al.
• Court: Missouri Supreme Court

46 S.W. 1096

145 Mo. 356

UNION NAT. BANK OF CHICAGO v. BARKER et al.

Supreme Court of Missouri, Division No. 1.

July 6, 1898.

MORTGAGES — FORECLOSURE — PRIORITY OF LIENS — FINDINGS — BILL OF EXCEPTIONS — TIME OF FILING.

1. Where, on allowing an appeal, on June 15th, plaintiff was given "until on or before the first day of the next October term * * * in which to file its bill of exceptions," which day was October 14th, an order entered on October 16th, in pursuance of a stipulation between the parties, extending the time for filing such bill, was void for want of jurisdiction.

2. In a suit to foreclose a mortgage, a finding that such mortgage was not valid as against the defendant bank, and that the lien of such bank on the mortgaged property was paramount to that of plaintiff, was insufficient to support a decree adjudging the priority of a lien claimed by such defendant bank, as an attaching creditor of the mortgagor, over that of plaintiff's mortgage, on the alleged ground that such mortgage was executed for the purpose of hindering, delaying, and defrauding the creditors of the mortgagor, in the absence of any finding on the issue so tendered, or of a general finding in favor of such defendant bank.

Appeal from circuit court, Jackson county; Charles N. Dobson, Judge.

Suit by the Union National Bank of Chicago against S. B. Barker and others to foreclose a mortgage. From a decree adjudging the priority of an alleged attachment lien in favor of the National Bank of Commerce of Kansas City, a defendant in such suit, plaintiff appeals. Reversed.

Almerin Gillett and Tenney, McConnell, Coffeen & Harding, for appellant. Elijah Robinson, for respondents.

BRACE, P. J.

By mortgage deed dated May 9, 1893, defendants Samuel B. Barker and wife, of Chicago, conveyed certain real estate therein described, and situate in Kansas City, Jackson and Chariton counties, Mo., to the plaintiff, the Union National Bank of Chicago, to secure the payment of an indebtedness recited in said instrument, as follows: "Whereas, said Samuel B. Barker, one of the parties of the first part, is now justly indebted to the Union National Bank of Chicago, party of the second part, in a large sum of money, both individually and as a member of the partnership of A. H. Caryl & Co., and may in like manner become further indebted to the party of the second part in further sums from time to time, all said indebtedness being represented or to be represented by the promissory notes of said Barker, or of said firm, payable to the party of the second part, now held by it, or to be hereafter taken and held by it, by way of renewal notes, now so held or to be hereafter executed to it for actual indebtedness contracted between the parties," upon the following conditions: "Provided always, and these presents are upon this express condition, that if said parties of the first part, their heirs, executors, administrators, or assigns, shall well and truly pay or cause to be paid to the party of the second part, or its assigns, the indebtedness aforesaid, with interest thereon, at the time and in the manner specified in the above-mentioned notes, according to the true intent and meaning thereof, which the parties of the first part hereby agree to do, then and in that case these presents and everything herein expressed shall be absolutely null and void. And it is further provided and agreed that if default be made in the payment of said indebtedness, or any part thereof, or the interest thereon, or any part thereof, at the time and in the manner aforesaid, or in case of nonpayment of taxes or assessments, or the breach of any of the covenants or agreements herein contained, then and in such case the whole of said indebtedness in this mortgage mentioned shall thereupon, at the option of the party of the second part or its assigns, become immediately due and payable, anything herein or in said notes contained to the contrary notwithstanding, and this mortgage may then be immediately foreclosed to pay the same, by said party of the second part or its assigns, and it shall be lawful for the party of the second part or its assigns to enter into and upon the premises hereby granted, or any part thereof, and receive all rents, issues, and profits thereof." This instrument was duly acknowledged by the said Barker and wife on the 13th of May, 1893; filed for record and recorded in Chariton county on the 20th of May, 1893, and in the county of Jackson on the 30th of May, 1893. Afterwards, on the 5th of September, 1893, this suit was instituted in the circuit court of Jackson county at Kansas City, to foreclose said mortgage as to certain portions of said real estate situate in Kansas City, and described in the petition, to which the National Bank of Commerce of Kansas City, E. W. Backus, John N. Rowe, and C. J. Carter were also made parties defendant. The second amended petition, filed October 6, 1893, after setting out the mortgage deed, charges that "on the 25th day of May, 1893, at Chicago, Ill., the said defendant Samuel B. Barker, being so indebted to said plaintiffs at the time of the execution and delivery of said mortgage as aforesaid, and being then and there, on said 25th day of May, 1893, still so indebted, and in pursuance of an understanding and agreement between the said defendant Samuel B. Barker and this plaintiff, at the time said mortgage was made, executed, and delivered, the said defendant Samuel B. Barker, together with one A. H. Caryl, made, executed, and delivered to this plaintiff his certain promissory note in writing of that date, whereby he agreed to pay this plaintiff on demand, after date, for value received, twenty thousand (20,000) dollars, with interest at seven (7) per cent. per annum from date until paid, a copy of which said note is hereto attached, marked `Exhibit B,' and made a part hereof, which said note was given in pursuance of certain terms and conditions contained in said mortgage, to represent a portion of the said indebtedness existing at the time said mortgage was dated, and which continued to exist up to and at the time of the execution and delivery of said note, and which said promissory note did at the time it was so executed and delivered by the said defendant Samuel B. Barker, and ever since that time has represented a portion of said indebtedness so existing as aforesaid at the time said mortgage bears date. That plaintiff is the owner and holder of said note and mortgage. Plaintiff further states that payment of said note has been demanded and refused; that said note is past due, and the defendant Samuel B. Barker, his wife, and A. H. Caryl have wholly failed and refused to pay the same, although often requested so to do; and that there is now due to this plaintiff on said note the full sum of twenty thousand (20,000) dollars, with interest thereon at the rate of seven (7) per cent. per annum from May 25, 1893; and that, by reason of such failure, the conditions of said mortgage have become broken, and said mortgage has become absolute; * * * that said defendants National Bank of Commerce, E....