Williams v. Moniteau Nat'l Bank

• Decision Date: 31 October 1880
• Citation: 72 Mo. 292
• Parties: WILLIAMS v. THE MONITEAU NATIONAL BANK, Appellant.
• Court: Missouri Supreme Court

72 Mo. 292

WILLIAMS

v.THE MONITEAU NATIONAL BANK, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Moniteau Circuit Court.--HON. G. W. MILLER, Judge.

AFFIRMED.

Owens & Wood for appellant, argued that parol evidence was inadmissible to identify the notes. Jennings v. Brizeadine, 44 Mo. 332: McAfferty v. Conover, 7 Ohio St. 99. The plaintiff is estopped. Bigelow on Estoppel, 484; Mardis v. Mardis, 13 La. 236; Jennison v. Hapgood, 10 Pick. 77; Rice v. Bunce, 49 Mo. 231; Chouteau v. Goddin, 39 Mo. 229; Garnhart v. Finney, 40 Mo. 449.

John W. Moore for respondent, argued that parol evidence was admissible to prove what indebtedness was intended to be secured. Aull v. Lee, 61 Mo. 160; Scott v. Bailey, 23 Mo. 140; 1 Wash. Real Prop., (2 Ed.) p. 505; Blackburn v. Tweedie, 60 Mo. 505; Carter v. Holman, 60 Mo. 498; McQuie v. Peay, 58 Mo. 56; Jackman v. Brown, 7 Cow. 13; Hall v. Tuft, 18 Pick. 455; Kimball v. Myers, 21 Mich. 276; s. c., 4 Am. Rep. 487; Foster v. Reynolds, 38 Mo. 553. The plaintiff is not estopped. Bigelow on Estoppel, p. 481; Bales v. Perry, 51 Mo. 449; Eitelgeorge v. Mut. House Bldg. Assn., 69 Mo. 52.

NORTON, J.

This is a proceeding instituted in the circuit court of Moniteau county against the defendants, W. E. Green, H. C. Hickcox and the Moniteau National Bank, to foreclose a deed of trust executed by defendant Green to Hickcox, as trustee for plaintiff's intestate, Robert Basnet, on certain lands therein described.

The petition, after alleging the death of Basnet and the appointment of plaintiff as his administrator, alleges that prior to March 28th, 1873, Basnet became security for said Green on a note dated January 29th, 1873, discounted by him to the Moniteau National Bank for about $1,700; that Basnet also became security for said Green on a note given by him to Ivy Nance for $360, dated January 25th, 1873; that, to secure Basnet from the payment of said notes, Green executed the said deed of trust to the land described therein; that after Basnet's death the Ivy Nance note was probated against his estate, and that plaintiff, as administrator, paid thereon $50 January 26th, 1875, and the further sum of $346.46 on May 12th, 1875. It is also alleged that after the death of Basnet, the $1,700 note was renewed, and on the 24th day of January, 1874, Green gave a second deed of trust with power of sale to secure this note to the Moniteau National Bank, and that default being made in the payment of said note, the trustee, in pursuance of the power, sold and conveyed the land to the Moniteau National Bank; that the trustee under the second deed of trust and the said bank had full notice of plaintiff's lien upon the land for the Ivy Nance note. Green and Hickcox, filed separate answers, being general denials. The bank filed separate answer specifically denying all the averments of the petition except its incorporation, the execution of the second deed of trust, the sale thereunder and the purchase by the bank. It also sets up that the deed of trust, the enforcement of which plaintiff is seeking, was void; that the debt mentioned in the petition is not described in said deed, that the bank had no knowledge of the first deed, and that, at the time of the purchase by the bank, plaintiff represented that he would have sufficient means in his hands, of said Green, to pay Green's liability to the estate of Basnet, and by this representation induced defendant to buy said land at its full value, whereby plaintiff should be estopped from disputing the title acquired at the sale. The cause was, by consent, referred to a referee, upon whose report judgment was rendered for plaintiff, and a decree of foreclosure directing the sale of the land to pay it, from which the defendant bank has appealed.

It is insisted by defendant that the deed of trust, the foreclosure of which plaintiff seeks, is void, because the acknowledgment of the grantor was taken by Hickcox, the trustee named therein, and because the debt which it was given to secure is not described.

1. DEED OF TRUST: acknowledgment before trustee void, but does not avoid deed.

An acknowledgment of a deed taken by the grantor named therein, though wholly insufficient to authorize the recording of the deed, does not render the deed void. While such an acknowledgment is invalid, the deed, if in fact executed and delivered, is binding and valid between the parties to it, and all those who have actual notice of it. This has been expressly held in the case of Black v. Gregg, 58 Mo. 565. It appears in this case that defendant had actual notice of the deed of trust relied upon by plaintiff, which is sufficient to bind him.

2. _____: parol evidence to supply defects in.

While the description of the note secured by the deed of trust is in some respects indefinite, it sufficiently appears that a note to Ivy Nance on which Basnet was security, was intended to be secured. The following is the description contained in the deed: “In trust, however, for the...