Young v. Cason

• Citation: 48 Mo. 259
• Parties: WILLIAM C. YOUNG et al., Defendants in Error, v. BENJAMIN CASON, Plaintiff in Error.
• Decision Date: 31 July 1871
• Court: United States State Supreme Court of Missouri

48 Mo. 259

WILLIAM C. YOUNG et al., Defendants in Error,

v.BENJAMIN CASON, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1871.

Error to Cole Circuit Court.

Defendant, between the making of the first and second deeds of trust, obtained judgment against Cordell, and had the land in controversy levied on and sold.

For facts generally, see 43 Mo. 179.

H. C. Hayden, for plaintiff in error.

I. The mistake in the first deed of trust was not cured by the making of the second deed of trust, as judgment liens intervened.

II. Young did not show that he had paid the debt.

III. Those who were substituted on the record as co-plaintiffs had no status in court. Their claim to relief was barred by the statute of limitations, by both the five and ten-year statute.

IV. Admitting that they were all in court properly, yet the entry of a decree divesting Cason of title and vesting the same in Young was simply an enormity. Cason had the right to redeem, and there was not even a strict foreclosure, but he is cut off by the decree from even paying the entire debt and taking the property, as he had the unquestionable right to do. The only decree which could have been rendered under any circumstances was to order a sale of the real estate, after correcting and reforming the deed, and thus, afer a sale, to give Cason, the representative of Cordell and the owner of the equity of redemption, the benefit of the surplus. If the debt and interest amounted to $1,500 and the property was worth $5,000, Young, by the decree in this case, would get $3,500 which he is not entitled to, and which, as a matter of right and equity, belongs to Cason. The statute of limitations is a complete bar as against the new plaintiffs introduced upon the record as parties in the third amended petition. Their cause of action, if any, resulted from the payments severally made by them. Where indorsers or sureties pay the debt of the principal, their demands thus created are regarded as independent and several, and they stand in relation to each other as any other independent creditor toward a common debtor. (Harrison v. Phillips, 46 Mo. 525; 8 Cow. 168; 3 B. & P. 235; 3 N. Y. 366.)

Ewing & Smith, for defendants in error.

I. A court of equity will correct a mistake in the description of land in a deed, against a subsequent purchaser with notice. (Henkle v. Royal Assurance Co., 1 Ves. 314; Sto. Eq., § 153 and authorities cited.) This petition is not at variance with the rule of evidence that prohibits the introduction of parol testimony to vary the stipulations in a written contract, but is similar to the exception to this rule, which does permit such evidence in cases of fraud; so the position or rule contended for will permit parol evidence to correct evident and innocent mistakes of both parties to a written contract. (See Sto. Eq., §§ 155, 156; id., §§ 157-60, 165-6; see generally White v. Wilson, 6 Blackf., Ind., 448; Young v. Coleman, 43 Mo. 179; Hook, Adm'r, etc., v. Craighead, 32 Mo. 405; Leitensdorfer v. Delphy, 15 Mo. 160; Henderson v. Willis, 4 Scam., Ill., 13; 1 Edw. Ch. 477; Govenurer v. Titus, 1 Rol., Va., 287; Blessing v. Beatty, 1 Ind. 389; Watson v. Cox, 3 Sm. & M., Miss., 67; Simmons v. North, 36 Mo. 526; 26 Mo. 56; and see further 2 Johns. 558; 5 Johns. Ch. 224; id. 184; 10 Conn. 244; 1 Johns. Ch. 607; 1 Dev. Eq. 379; 1 Pet., U. S., 13; 3 Clark, Iowa, 557; 4 id. 314.) The second deed of trust cuts no particular figure in the case, except that, it being recorded and purporting on its face to be a bona fide deed, it was enough to put Cason on inquiry before buying--enough to give him constructive notice of Young's claim.

II. If Young had any rights at all, he had them under his deed of trust in equity, and it required no sale under that deed to perfect those rights, except so far as to close up or complete them. Under the deed of trust, Young and others had a prior and superior equity in the land in controversy, and his purchase gave him no better rights, but only gave him power to assert them in a court of equity.

III. A purchaser with notice is treated by the courts just as his vendee; and Cason having both actual and constructive notice, stands exactly in the position Cordell himself would have occupied if his property had not been sold, and Cason will be held to be a trustee for Young. (Sto. Eq., § 395; Sugd. Vend., 1st Am ed., 470-1 and authorities cited; 4 Kent, 172; Wallace v. Wilson, 30 Mo. 335; 14 Mo. 170; 20 Mo. 133; Murray v. Ballou, 1 Johns. Ch. 566; 2 Johns. Ch. 158.)

BLISS, Judge, delivered the opinion of the court.

This cause has been once before this court, and is reported in 43 Mo. 179. On being remanded, an amended petition was filed, in which several new parties joined as plaintiffs; and Coleman, being a nominal defendant, was not named. We before found that the mistake in the first deed was sufficiently established, but it did not appear that the plaintiff had paid the debt, to secure which the deed was given, and therefore he had no equity as against other creditors. It now appears that the debt, amounting to about $1,600, has been paid by the plaintiff and his cosureties; that the original trust deed was executed to Parsons for the benefit of all the sureties, and that the property...