Wishart v. Gerhart

ELLISON, J. This is an action of unlawful detainer. The judgment in the trial court was for plaintiff. Plaintiff’s right to the property is founded upon a deed of trust, in the usual form, executed by defendant to plaintiff to secure to him the payment of $3,000, and which the plaintiff had foreclosed. The deed recited that it was executed, ‘ ‘ in consideration of the debt and trust hereinafter mentioned and created and the sum of one dollar. ’ ’ At the trial defendant offered to prove that the deed was, in fact, without consideration. Plaintiff’s counsel objected to the evidence and the trial court thereupon refused defendant’s offer. The defendant bases his case on section 645, Eevised Statutes 1899, which reads as follows: “Whenever a specialty or other written contract for the payment of money, or the delivery of property, or for the performance of a duty, shall be the foundation of an action or defense in whole or in part, or shall be given in evidence in any court without being pleaded, the proper party may prove the want or failure of the consideration, in whole or in part, of such specialty or other written contract. ” We are of the opinion that this statute does not support defendant’s position in a case of this nature. Where a deed recites a consideration, it, when not contractual, may be shown to be different, yet, a party is estopped by such deed from defeating its operative effect as a conveyance Henderson v. Henderson, 13 Mo. 151; Bobb v. Bobb, 89 Mo. 411-419; Dobyns v. Beneficiary Ass’n, 144 Mo. 95-109. This court has recognized and applied those au [116] thorities in a variety of cases. Jackson v. Railway, 54 Mo. App. 636; Davis v. Gann, 63 Mo. App. 425. The statute manifestly does not affect the law of estoppel, or the inviolability of written contracts. If a grantor should sue his grantee for the sum stated as the consideration in the deed, the statute permits the grantee to show that there was no consideration and there could be no recovery. So, if the grantee, claiming a breach of warranty, should sue* the grantor for all, or part of the consideration stated in the deed, the grantor, by the terms of the statute, could show there was no consideration and thus escape payment on the warranty; but he could not, in the absence of fraud, avoid the deed itself. For even a voluntary deed is binding as a conveyance between the parties. No rule of law is more firmly established than that, in the absence of fraud, accident or mistake, oral evidence can not be received to vary or contradict a written contract. A deed of conveyance is a contract of conveyance and the grantor will not be permitted to say that it is not; and the statute does not say that he may. The statute says that he may show that there was no consideration for it, but that is not saying he may show it was not a deed. For, showing there was no consideration for a deed does not, in fact, destroy its operative effect between the parties. The law, without regard to the statute, is that you may show the. recited consideration in a deed to be different, “but wherever a right is vested or created, or extinguished, by contract or otherwise, and a writing is employed for that purpose, parol tesr timony is inadmissible to alter or contradict the legal construction of the instrument. . . . Thus a will, a deed or a covenant in writing, so far as they transfer, or are intended to be the evidences of rights, can not be contradicted or opposed in their legal construction by facts aliunde." Davis v. Gann, 63 Mo. App. 425; That quotation is taken from Gully v. Grubbs, 1 J. J. [117] Marsh, 387, as it has been quoted and adopted in MeCrea v. Piermout, 16 Wend. 460. In New York, where so far as this question is concerned, the statute is like ours, it was said: “It has never been held that a deed can be so far contradicted by parol as to show that it was not intended to operate at all, or that it was the intention or agreement of the parties that the grantee should acquire no right whatever under it, or that he should reconvey to the grantor on his request without any consideration.” Hutchins v. Hutchins, 98 N. Y. 56. See also Draper v. Shoot, 25 Mo. 202. We think the complaint states a cause of action; and that it was not necessary that it allege the property was in the city ward of the justice before whom it was filed. Section 3323, Revised Statutes 1899. So we think that plaintiff invoked the proper remedy. He is a purchaser under a deed of trust. As such grantee, he may maintain unlawful detainer under the statute. Sexton v. Hull, 45 Mo. App. 339. The judgment should be affirmed. All concur.