Mandle v. Horspool

BECKER, J.

This is an appeal from a judgment on demurrer, dismissing .plaintiff’s petition on the ground that it states no cause of action.

Plaintiff’s second amended petition alleges that on March 1, 1912, the Star Tile & Mantel Company, a corporation, was indebted to- plaintiff’s assignor, on open account, in the sum of $1317.16, which was then due *652 and payable. That defendants, Ernest E. and Pearl Horspool, about April 26, 1912, in consideration of an extension of time for the payment of said indebtedness, which was agreed to be granted by plaintiff’s assignor to the debtor, promised and agreed to and with plaintiff’s assignor to execute and deliver to the latter a deed of trust on certain real estate in St. Louis .County, Missouri, described in the petition, as security for the payment of said indebtedness.

That in pursuance of said promise, the defendants, Horspool, executed and delivered to plaintiff’s assignor a deed of trust on said real estate delivered in fact as security for the indebtedness of said Star Tile & Mantel Company, but reciting on its face that it was given to secure a debt of $3000, purporting to be evidenced by a principal note of defendants, Horspool, for $3000, due in three years, and six semi-annual interest notes for the interest to accrue for said period, which said deed of trust was duly recorded in the office Of the Recorder of Deeds for St. Louis County, Missouri, in Book 295, at page 239.

That in consideration of the premises, plaintiff’s assignor extended the time for the payment of said indebtedness for more than six months. That in the meantime the Star Tile '& Mantel Company made various payments to plaintiff’s assignor, amounting to $220.78.

That on October 29, 1912, the Star Tile & Mantel Company was adjudged a bankrupt, and plaintiff’s assignor presented his claim and received dividends thereon, amounting to $190.25. That the balance due and unpaid, after crediting all payments of dividends, is $906.13.

That although the deed of trust was duly executed and delivered to plaintiff’s assignor, yet the notes described in the deed of trust, and which it purported to secure, were not delivered to plaintiff’s assignor, and defendants, Horspool, have since refused to deliver said notes.

That after the execution of the deed of trust, defendants, Horspool, conveyed the property to defend *653 ant, Miles, by a deed expressly providing that the conveyance was subject to the deed of trust in suit.

That before the institution of this suit the plaintiff acquired by assignment the interest of his assignor in the debt and cause of action. The interests of the defendants other than Horspool and Miles are those of lienors of the property.

The petition prays for the foreclosure 'of the deed of trust. Each of the defendants filed a demurrer to the said second amended petition of plaintiff, the grounds for such demurrers being identical, namely that the said petition does not state facts sufficient to constitute a cause of action. The demurrers were sustained, and, plaintiff refusing to plead further, the trial court rendered final judgment in said cause, dismissing plaintiff’s bill. Whereupon plaintiff brings this appeal.

Defendants below, respondents here, have not filed any briefs in the ease and as the learned trial judge did not hand down any memorandum stating the specific defects in the petition for which he held the petition demurrable, we have nothing before us to point out wherein the said petition is held to fall short of stating a cause of action.

After a careful reading of the petition we believe the controlling question in the case is whether the petition on its face shows a valid security, in view of the fac't that it appears therein that the notes described in the deed of trust in question, and which notes the deed, of trust recites it is executed to secure, were never in fact delivered to plaintiff’s assignor, mortgagee in said deed of trust.

While we have not fpund a case in our State in which this point has been directly decided, it has been held that it is not required that a mortgage shall set forth a literal copy of the instrument secured thereby, but that it is sufficient to describe it according to its legal effect. That if it is stated in the conditions of the mortgage “that the grantor was indebted to the grantee for money loaned and his liability on diverse bills of exchange and promissory notes, and it provided *654 that if he discharged them in six months the deed should he void,” it was a sufficient description of the debts since it was capable of being made certain by parol evidence. [Aull v. Lee et al., 61 Mo. l. c. 165, and cases cited. See, also, Williams v. Bank, 72 Mo. l. c. 295.] And in Stevens v. Hampton et al., 46 Mo. l. c. 410, a second trust deed, being the one under which defendant purchased, which purported to be given to secure a promissory note due the beneficiary, whereas the evidence showed that it was given to indemnify him as security upon a note to a third person, and the proceeds of the sale were applied in the payment of such note, yet such mortgage was held valid on the ground that courts uniformly sustain bona-fide mortgages notwithstanding the debt may have been incorrectly set out in the conditions; and parol evidence held admissible to explain the consideration.

We are of the opinion, and so hold, that no other written evidence of a debt than that furnished by the instrument itself is necessary to sustain a mortgage. [19 R. C. L., 295; 4 Kent’s Commentaries, 1, 145; Jones, Mortgages, sec. 353; Graham v. Stevens, 34 Vt. 167 ; Lee v. Fletcher, 46 Minn. 49 .]

We hold the deed of trust as alleged is valid even without any note or bond, although it purports to secure a note and substantially describes it, and this for the reason that the deed of trust recites that a debt in fact exists independently of the note. If it is made to appear that a debt does exist it is not essential that there should be any evidence of it beyond that furnished by the recitals in the deed. “The true state of the indebtedness need not be disclosed by the instrument itself, but, in cases free from fraud, may be shown by parol. In such cases the validity of the mortgage is not affected by the fact that it was given for a larger sum than that actually due, or that its condition misrepresents the obligation or liability in fact secured or intended to be secured.” [Lee v. Fletcher, supra; Nazro v. Ware, 38 Minn. 443 ; Field v. Brokow, 148 *655 Ill. 654 ; Graham v. Stevens, supra; Hogdon v. Shannon, 44 N. H. 572.]

As to consideration, “a promise of forbearance though for an indefinite time, if a reasonable time be given, is a promise on a consideration and binds secondary or additional obligors.” [Powers v. Woolfolk, 132 Mo. App. 354 , l. c. 360, 111 S. W. 1187 , and cases there cited.] And therefore plaintiff’s petition is sufficient in this respect.

We have carefully examined plaintiff’s second amended petition and find that it states a cause of action. The judgment of the trial court herein is accordingly reversed and the cause remanded.

Reynold, P. J., and Allen, J., concur.