Rubey v. Missouri Coal & Mining Co.

Hall, J. — An action under our statutes to foreclose a mortgage or deed of trust is a legal action. Mason Bernard et at., 36 Mo. 384. But the statutory mode of foreclosure is not exclusive. ‘ ‘ It has also been the opinion that, notwithstanding the mode prescribed by the statute, a party might forego the statutory remedy, and pursue his rights in a court of chancery by a bill in equity.” Scott, J., in Riley v. McCord, 24 Mo. 268. In the latter case it was also said, “when a proceeding to foreclose a mortgage has been had, in order to determine whether it was under the statute or .according to the course in chancery we must have recourse to the substance of the thing, and not to the rhetorical flourishes with which it may. be accompanied.” The proceeding in the case at bar was a proceeding in equity and not under the statute. The proceeding was properly instituted in equity, because, “if there are successive liens or incumbrances, it is eminently proper and promotive of justice that the mortgage should be foreclosed in a court of equity, where the accounts of ail the parties in interest can be readily adjusted, and the trust fund equitably distributed among all the claimants.” Jones on Chattel Mortgages, sect. 779. ‘ ‘ The terms of every written instrument are to be understood in their plain, ordinary and popular sense, unless they have generally, in respect to the subject [168] matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words ; or unless the context evidently points out, that, in the particular instance, and in order to effectuate the immediate intention of the parties, they must be understood in some other and peculiar sense.” Greenl. on Evid., sect. 278; Burnham v. Banks, 45 Mo. 350; 2 Phillips on Evid. 632. The intention of the parties is to be generally ascertained from the instrument. “Itmay be laid down as a settled”-rule, that the intention of a party is to be ascertained from the meaning of the words in the instrument, and from those words alone, with the aid of such extrinsic evidence as the law permits to be used in order to enable a court to discover the meaning of the terms in the instrument, and to apply them to the particular facts of the case.” 2 Phillips on Evid. 633. In the same volume of said work on the following two pages extensive quotations from an opinion by Tindal, C. J., are found in the text. After stating the general rule, and the instances in which evidence dehors the instrument is admissible, the chief justice said: “ But whilst evidence is admissible in these instances for the purpose of making the written instrument speak for itself, which, without such evidence, would be either a dead letter, or Avould use a doubtful tongue, or convey a false impression of the meaning of the party, I conceive the exception to be strictly limited to cases of the description above given, and to evidence of the mature above detailed ; and that in no case whatever is it permitted to explain the language of a deed by evidence of the private views, the secret intentions, or the known principles of the party to the instrument, any more than by express parol declarations made by the party himself, Avhich are universally excluded; for the admitting of. such evidence would let in all the uncertainty before adverted to ; it would be evidence which in most -instances could not be met or countervailed by any of an opposite [169] bearing or tendency, and would in effect cause the secret undeclared intention oí the party to control and predominate over the open intention expressed in the deed.” And it is laid down by Mr. Jones, in his work on Chattel Mortgages, that “parol evidence is not admissible to contradict the terms of a mortgage, by showing that property covered by .it was not intended to be embraced in it. Such evidence must be consistent with the de- • scription. It cannot be used to supply what the parties have omitted, or to reject a reference in the description which is true.” Section 64. The trial court, therefore, properly disregarded the deposition of Epperson, introduced by Forcht, as to what was his intention and understanding, in making the second deed of trust, with reference to the mules in controversy. The words used in the second deed of trust to describe the property included therein must be understood to have been used in their plain and ordinary sense, as applied to the subject matter. One of the definitions of the word, equipment, given by Mr. Webster is, “third (Civ. Eng.) the necessary adjuncts of a railway, as cars-locomotives.” The equipments of a coal mine are all its necessary adjuncts, and include pit mules which are an essential part of its apparatus and without which it cannot be operated. Parol evidence was admissible to show that the mules in controversy were pit mules and that they were necessary adjuncts of the mine, on the principle that such evidence is admissible to identify the mortgaged property. Jones on Chattel Mortgages, sect. 64. Within the meaning of the word, “equipments,” used in the second deed of trust, were embraced the pit mules, which were essential to the operation of the mine.' The only doubt that exists as .to whether the mules were included in said deed of trust, is on account of said word'being immediately followed by particular words referring to special kinds of equipments, which without their use would have been included in the gen [170] eral term, equipments. Had the general word, equipments, been connected with the following particular words by any phrase of like import with “such as,” “consisting of,” or “as follows,” indicating an intention to limit the meaning of the general word, it would be confined to equipments of a like character with those embraced in the particular words. Jones on Chattel Mortgages, sect. 77, and cases cited. In the absence of such connecting phrase we do not think that the meaning of the general word, equipments, can be held to be thus limited by the following particular words. We hold that it is not thus limited. The provisions of the second deed of trust as to the future acquired equipments fall within the principles of the following cases: Wright v. Bircher, 5 Mo. App. 322; Wright v. Bircher, 72 Mo. 179; Rutherford v. Stewart, 79 Mo. 216; Frank v. Playter, 73 Mo. 672; France v. Spencer, recently decided by the supreme court, and not yet reported. By these provisions an equitable lien was created, which attached to the future acquired property when if was acquired. And that lien was a valid and subsisting lien as against Forcht because his deed of trust was taken, by an express provision of it, subject to the second deed of trust, and, therefore, with actual notice of said second deed of trust. The equitable lien, it is true, could be enforced only by an equitable proceeding (France v. Spencer, supra) ; but, as we have seen, thi® proceeding is an equitable proceeding. Judgment affirmed. All concur.