White v. Pendry

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 542
• Parties: THOMAS M. WHITE, Respondent, v. RICHARD T. PENDRY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 542

THOMAS M. WHITE, Respondent, v. RICHARD T. PENDRY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the Knox County Circuit Court, BEN. E. TURNER, Judge.

Affirmed.

O. D JONES, for the appellant: The cause of action stated is barred in five years. Rev. Stat., sect. 3230. The mortgage is personal property, and, after default, is only security for the debt. Pease v. Dilot, 49 Mo. 124. An action to set it aside is one concerning personalty. Bobb v Woodward, 50 Mo. 95. This is an action for relief, on the ground of fraud, and accrued when the mortgage was recorded. Hunter v. Hunter, 50 Mo. 445; Thomas v. Matthews, 51 Mo. 107; Rogers v. Brown, 61 Mo. 187.

J. J MCCALL, for the respondent.

OPINION

THOMPSON J.

This action was brought to cancel a note for the sum of six hundred dollars, and a mortgage upon real and personal property, given to secure the same. The note and mortgage were executed by the plaintiff to the defendant, on the thirteenth day of December, 1875, and the mortgage was placed on record by the defendant, on the twentieth day of December, 1875. The petition charges that the mortgage was given to secure a loan of six hundred dollars, which the defendant agreed to make to the plaintiff, but that no money was ever, in fact, advanced by the defendant to the plaintiff thereunder.

The answer admits the execution of the note and mortgage, as stated in the petition, and that the sum of six hundred dollars was not advanced by the defendant, as therein alleged, but charges that the defendant never agreed to make such an advance, but that, on the contrary, the note and mortgage were given to secure a previous indebtedness of the plaintiff; sets up the defence of laches and the statute of limitations of five years; and, by way of counter claim, prays judgment for the amount of the principal and the interest due on the note, and for a foreclosure of the mortgage. A reply put in issue the new matter set up in the answer.

The learned judge of the trial court submitted to a jury the question, whether the note was, or was not, executed for a consideration. After hearing the evidence, they returned the following verdict: " We, the jury, find that the note and mortgage were executed without any consideration." The court entered a decree reciting the trial of the cause, the submission of this issue to the jury, their finding thereon, that, in the opinion of the court, their finding was for the right party, and ordering the cancellation of the note and mortgage. The defendant appeals to this court.

I. The evidence showed that, at the time of the giving of the note and mortgage, and long before and since, the plaintiff and the defendant were on terms of intimacy and friendship. The plaintiff was a farmer, and the land covered by the mortgage was the place where he lived; and it stands substantially admitted, in the pleadings, that it covered all the personalty he had on his place. The defendant was also a farmer, in the same neighborhood. Prior to the transaction, the defendant had, for the time, kept a drug store, in the town of Novelty, and the plaintiff had been in the habit of buying goods there on credit. On the first of January, 1873, the plaintiff gave the defendant a note for four hundred and twenty-five dollars, which the defendant testified was in settlement of his account with the defendant, to that date. About two months thereafter the defendant went out of the business of keeping the drug store. This note and mortgage, it is to be remembered, were given nearly two years thereafter. The plaintiff testified positively that the consideration for which this note and mortgage were given was as follows: Certain other persons owned a three-eighths interest in the plaintiff's farm. They lived at St. Joseph, Missouri, but were in the neighborhood at the time. The plaintiff wanted to buy out their interest, and to get some additional money to stock the place, and the defendant agreed to lend him the money, on the mortgage, for that purpose, and to hand the money over whenever the persons should be brought to his house for that purpose. With that understanding, the note and mortgage were executed. But those persons, instead of selling out their interest to the plaintiff, soon thereafter sold it to one Hunsaker; so that the trade fell through, and no money was ever, in point of fact, advanced on the note and mortgage. The plaintiff admitted that the defendant had frequently loaned him money, before and since, and there seems to be little doubt, on the testimony, that a part of the four hundred and twenty-five-dollar note, and some advances, made to the plaintiff, subsequent to the note and mortgage in controversy, amounting to one hundred and fifteen dollars, had never been paid. But these advances, according to the plaintiff's testimony, formed no part of the mortgage and note in controversy.

The defendant, on the other hand, testified positively that the consideration of the note and mortgage was goods previously sold and delivered, by him, to the plaintiff; but, on his cross-examination, this defence broke down. He failed to explain how it was that the plaintiff could have incurred such a large amount of indebtedness, for goods, during the period (about two months) which elapsed between the settlement, by the four hundred and twenty-five dollar note and the time when the defendant went out of business, as keeper of the drug store; and no other sales of goods, except from the drug store, were...