Dobyns v. Rice

Hall, J. The facts, found by the trial court, in the above decree, are proved by the evidence contained in the record. The direct evidence is not as full and complete as it might be, but the facts and circumstances in. proof, in connection with the direct evidence, sustain the court below in its finding of facts. And after a careful examination of all the evidence in this case, we have no-sort of doubt as to the correctness of the court’s finding. In the further discussion of the case we shall treat the facts found in the decree as the facts of this case. II. It is settled law in this state that it is competent to. explain or contradict the consideration clause in a deed, such clause possessing only the force and character of a. receipt. Liebke v. Knapp, 79 Mo. 27; Fontaine v. Boatmen’s Savings Institution, 57 Mo. 561; Hollocher v. Hollocher, 62 Mo. 267; Baile v. Insurance Co., 73 Mo. 371 Hall v. Morgan, 79 Mo. 51. The objection, therefore, made by the defendants to the action of the trial court in permitting the plaintiff to [455] prove the agreement made by Meredith Rice, that the amount of the Calhoun incumbrance should be paid out of the proceeds of the notes, for the reason that thereby the terms of the deed were contradicted, is not tenable. Nor was such proof inadmissible as contradicting the terms of the notes. Klein v. Keyes et al., 17 Mo. 828. This objection would seem to come within the rule enunciated in the above cases. It was said in Baile v. Insurance Company, supra: “Again, the consideration of the deed of trust, as expressed on its face, is to secure the note, but the law is well settled in this state that you may, by verbal testimony, explain or contradict the consideration clause in a deed; such clause only possesses the force and character of a receipt.” And, again, it was said in Liebke v. Knapp, supra: “The consideration of the contract evidenced by the letters was not expressed therein, and, had it been, it was doubtless competent to show another and different consideration, or to show that the agreement, though made for a payment in money had been discharged in whole or in part in another way.” Nor can such proof beheld to be inadmissible as contradicting the covenant of the deed against incumbrances. Laudman et al. v. Ingram, 49 Mo. 213. Nor was the agreement within the statute of frauds, as being the undertaking, on the part of Meredith Rice, to pay the debt of another. By paying the Calhoun incumbrance, Meredith Rice would have paid his own debt. Such an agreement is not within the statute of frauds. Beshears v. Rowe, 46 Mo. 503. See, also, Hale v. Stuart, 76 Mo. 22, and Browne v. Browne, 47 Mo. 130. III. The additional objection to the decree of the circuit court is made that there was no declaration of trust in [456] the land by Samuel Rice in writing, and that an express trust in land cannot be established by parol evidence. The land was sold under the Calhoun deed of trust under an agreement between plaintiff and Meredith Rice to benefit in some way, unexplained satisfactorily, Meredith Rice’s title to the land, and plaintiff’s attorney bid in the land for the amount of the trust debt and costs of sale in pursuance of the agreement. Samuel Rice and one Craig furnished the amount of the bid for Meredith Rice, and the trustee’s deed was made to Samuel Rice. Meredith Rice afterwards paid to Craig the amount furnished by him. Meredith makes no claim to relief against Samuel Rice. The question is as to what rights, if any, Samuel Rice thus obtained against the plaintiff. Between plaintiff and Samuel Rice there was no trust. By paying the trust debt for Meredith Rice, Samuel Rice extinguished the lien of the deed of trust; so far as concerns the plaintiff, Meredith Rice owed the trust debt, and he was bound to pay it as part of the purchase money. Had he paid it, the lien of the deed of trust would have been extinguished. The payment of it by Samuel Rice for him, had the same effect. As long as said lien had life, it was prior to plaintiff’s vendor’s lien. It ceased to have life when the trust debt was paid by Meredith Rice, who owed it, or by any one, for him. Had Meredith Rice paid the amount of the trust debt and costs of sale, and taken the trustee’s deed to himself, he would thereby have acquired no rights against the plaintiff. The land would have been still subject to the plaintiff’s vendor’s lien. And so we hold with reference to Samuel Rice, who paid the said amount for Meredith Rice, and took said deed to himself. He acquired no greater rights against the plaintiff than Meredith Rice would have acquired. IY. The objection of laches made by defendants is not [457] tenable. The delay in the institution of this suit worked no harm to either of the defendants. During that delay neither of them changed his position. The mere lapse of time, less than the statutory period, does not bar an notion at law or in equity, in this state. Kelly v. Kurt, 61 Mo. 464; s. c., 74 Mo. 561. Y. Objection to the decree is made on the ground that it includes a judgment, in personam, against Meredith Rice for any balance that might remain after selling the land. This objection the defendants are not in a position to make. They made no motion in arrest. Erdbrudgder v. Meyer, 14 Mo. App. 258; Kinney v. State, 9 Mo. 642; Gilstrap v. Kelps, 50 Mo. 432; Warner v. Morin, 13 Mo. 455 Philips, P. J., does not sit in this case, haying been of counsel. Upon the third point of this opinion, Ellison, J., and I divided, he entertaining the views herein expressed under that point, and I differing with him. Hon. John C. Gage was selected by the parties as special judge. Upon consultation with my brother judges, I have concluded that the judgment of the circuit court should be affirmed, for the reasons herein given, and with the concurrence of all, it is so ordered.