Bank of Tipton v. Davidson

Grim, J.

It would seem hardly necessary so often to remind lawyers and litigants of the existence of rule 15 of this court requiring £< the appellant or plaintiff in error to file here, on or before the day next preceding the day on which the cause is docketed for hearing, copies of a printed abstract or abridgment of the record in said cause, setting forth' so much thereof as is necessary to a full understanding of all the questions presented to this court for decision.” Nor is it necessary to repeat, as so often declared, that we will not look beyond the abstract for information upon which to determine the question raised. Foster v. Trimble, 18 Mo. App. 394 ; Goodson v. Railroad, 23 Mo. App. 76 ; City of Kansas v. O ’ Connor, 36 Mo. App. 594 .

The appellant or plaintiff in error, too, must set out the portion of the record relied on in his first, or original, abstract. He cannot fail or refuse to furnish such abridgment or abstract in the first instance, and then after respondent shall suggest in his brief such failure cure the defect by a so-called supplemental abstract. Cuomo v. The City of St. Joseph, 24 Mo. App. 567 .

The plaintiff in error here has furnished nothing by his so-called abstract except a mere statement of the case with a very general statement as to the contents of the petition. To this the defendants in error have added a more definite synopsis of the pleadings; which then presents us for decision nothing but a determination of the one point raised, to-wit, as to the sufficiency of plaintiff’s petition. .

The material averments of the petition in this case are, in substance, that Humes Bros, were the owners of a mill and tract of land upon which the same was situated in Morgan county, Missouri; that they sold said *424 property to one Zulauf and made him a deed thereof, and took his promissory notes for the purchase money ; that there were five of these notes ; that each was for the sum of one thousand dollars; that two of them were transferred by Humes Bros, to the Bank at Tipton, and one to Lumpee, another to one Mellow, and the remaining note to the defendant Davidson ; that these notes were secured by a deed of trust upon the property ; that default was made in the payment of the same, and the property was sold by the trustee under said deed, and purchased by the plaintiffs who were in possession thereof ; that some controversy arose as to the disposition of the money arising from the sale, and the trustee had filed a bill, asking that the holders of the notes be required to interplead and have their rights to the money in his hands settled and determined, and that this was still pending; that the defendant Davidson was about to sell said property, and had advertised the same for sale, under a pretended mortgage alleged to have been executed by Humes Bros, to the defendant and others on the tenth of November, 1871, and prior to the sale to Zulauf, and more than sixteen years before any attempt was made to foreclose the same ; that said debt claimed to be secured by said mortgage, under which defendant was about to sell the lands, had been settled and extinguished ; that it was also barred by the statute of limitation, and that there were pretended credits indorsed on the note, purporting to be secured by said mortgage, but that they were not made on the dates written upon the note, but were fraudulently placed thereon after the bar of the statute of limitations had attached ; that said note had been settled and surrendered by the defendant to the makers thereof, long prior to the sale to the plaintiffs ; that the claim under said mortgage was fraudulent, and made in collusion with Humes to extort money from the plaintiffs by casting a cloud upon their title ; that after their purchase, *425 the plaintiffs took possession of, and. made valuable improvements on, said property with defendant’s knowledge, and in ignorance of any claim upon defendant’s part under said mortgage, and that the defendant knew that the plaintiffs were making said improvements under the belief that they were the sole parties interested therein. The plaintiffs ask that said pretended mortgage be cancelled and annulled, and that the defendant be enjoined from making said sale, etc.

It is quite clear, that, admitting the truth of the foregoing allegations, plaintiffs should have equitable relief to prevent and remove a cloud from their title to the real estate in question. It would seem that defendant had of record an apparent right to sell this land and make a title thereto superior to that already acquired by the plaintiffs, but in the light of the facts outside the record, and which rest in parol, and can only be shown by extrinsic testimony, the defendant has no such right. In such cases there is no doubt as to the right to invoke equitable relief. Drake v. Jones, 27 Mo. 432 ; Harrington v. Utterback, 57 Mo. 519 ; Mason v. Black, 87 Mo. 344 -5.

Let the judgment of the circuit court be affirmed.

All concur.