Carter v. Holman

Napton, Judge, delivered the opinion of the court. The only question in this case depends on the construction of the following instrument, which was duly acknowledged, signed and recorded in Worth county, on the 1st day of December, 1869. There was a subsequent levy on the property alleged to have been described, and a subsequent deed of trust; and the only question is, whether the paper hereinafter stated constituted a mortgage or lien, so as to give it priority over subsequent creditors and purchasers. The paper in question was as follows: c- Know all men by these presents, that I, Marcus E. Holman, of Andrew county, am held and firmly bound unto Lncien E. Carter, of St. Joseph, iu the penal sum of $500, for the payment of which, well and truly to be made, I bind myself, heirs, executors,” etc. “ The condition of this bond is, that, whereas the said Carter holds five promissory notes against me, of one hundred dollars each, dated July 27, 1869, and due respectively in four, five, six, seven and eight months after the date thereof. Now, if I, the said M. E. Holman, shall make, execute and deliver to said L. E. Carter a good and valid deed of trust or mortgage on a farm owned by me, free of all encuna — 501 — brance, in townships sixty-five and sixty six, of Worth county, State of Missouri, to secure the payment of three of said notes within the next thirty, or sixty days, I being liable as the maker on all of said notes, and being unable to execute said mortgage at this time on said land, for the reason that I cannot recollect the nnmber of the section and range of the same sufficiently to describe said land in a mortgage which I am to give said Carter, then these presents shall be null and ■void and of no effect, otherwise to remain in full force and virtue in law. The land herein described lies south of Grant City, about one or one and a half miles, to which I attach this as a lien, for the performance of this agreement,” etc. The plaintiff in his petition claims a lien on the south half of the south west quarter of section five, town, sixty-five, range thirty-one, in Worth county, as being the land described in the above obligation. The bill of exceptions states, that the plaintiff gave evidence tending to show that the land described in his petition was the land intended to be described in the bond or writing obligatory heretofore set out. The evidence is, however, not set out in the bill of exceptions. The defendant then read the deposition of Mrs. Corby, which need not be noticed further, as it simply stated that she knew nothing whatever personally of the transaction, having an agent, named Culligan, to manage all her pecuniary affairs. Culligan was then examined. Iiis explanation of the matter is this: As agent for Mrs. Corby he hada deed of trust on Pettis’ land in the bottom in Buchanan county, for $S50. Pettis and Holman were about to exchange lands, and Pettis being unable to pa)' off the mortgage on his land in Buchanan, proposed to Culligan to relieve his land in Buchanan of this lien, and take 'in lieu thereof a mortgage on the land in Worth county, which he understood to be the south half of the south west quarter of section five, township sixty-five, range 31, and the north half of the south half of lot No. 2, of the south west quarter of section seven, in the — 502 — same township and range. The proposal of Pettis was agreed to, upon condition that the land in Worth county was free from incumbrance. A few days afterwards" Pettis came to the witness’ office, stating that he had been up to Grant City to look at the land, and searched for incumbrances, and gave him a certificate which the bill of exceptions states is marked “ A.,” but which is not in the record. This certificate, it may be inferred, was from the clerk of Worth county; but it is not copied, and, therefore as in the case of the plaintiff’s evidence, leaves everything to conjecture. It may be remarked here, that in cases tried by juries on instructions, or common law cases as they are usually termed, details of evidence are unnecessary, and therefore a mere statement of its tendency on either side is sufficient; but in chancery cases, where it is expected- that the court will review the testimony, the evidence at large may be important. The amount of the deposition of this witness was, that he had no knowledge of any incumbrance; he knew nothing of plain tiff’s lien ; he relied on the certificate above referred to, which he states was a certificate of the clerk of the county. Holman, the defendant, lived in Buchanan county, about two miles south of St. Jo. He intended to give alien on the east half of the north west quarter of section six, town, sixty-five, range thirty-one. He had no intention of giving a mortgage on what he calls his home place; that he after-wards sold that to Pettis. The reasons for this are explained, but immaterial. There was no house on this land, but part of ■it was cleared. He brought a written line from the clerk of ■the court of Worth county, stating that he had examined the books in Worth county, and found the Worth county land clear of incumbrance. He claimed two eighty acre tracts and one twenty acre tract, all derived from different sources. Hpon the testimony tire court decided that the instrument of writing sued on, in itself, was not a mortgage or lien in law or equity, except perhaps as against Holman, and that the filing thereof and recording the same imparted no notice — 503 — to defendants, nor to any subsequent purchaser of any incumbrance ; that said bond was not a conveyance or such an instrument as was authorized to be recorded. And the court gave final judgment for the defendants. , The doctrine of equitable mortgages, or liens arising from agreements or implied from a deposit of title deeds, is one of the creations of courts of equity which it is difficult to define or explain. It seems to be settled, however, that an agreement in writing to give a mortgage, will create a lien on the property specified in the agreement, as against general creditors. Most of the cases in this country seem to be traceable to the case of Delaire vs. Keenan, (3 Desans., 74, which is not here accessible) and Chancellor Desauessure referred to Lord Cowper’s opinion in Finch vs. The Earl of Winchelsea, (1 Pierre Wil., 283.) Lord Cowper there said, “Articles made for a valuable consideration and the money paid, will, in equity bind the estate and prevail against any judgment creditor mesne between the articles and the conveyance;” and this is all that was said on the subject, for the chancellor decided that, as the consideration was inadequate, he would disregard the agreement as against a judgment creditor. Upon this opinion of Lord Chancellor Cowper has been established the doctrine that an agreement for a mortgage has in equity a specific lien, and that the mortgagees were entitled to a preference over subsequent judgment creditors. (1 Paige, 130 ; 32 Cal., 375; 1 Hill. Mort., 648; McQuie vs. Peay, 58 Mo., 58; Adams Eq., 123 and note.) It may be considered, therefore, that the bond in this case was properly recorded, as it purported to affect land in the county where it was recorded, and the only question is, whether the description of the land was sufficiently accurate to convey notice. The only description of the land is, “a farm owned by me in townships sixty-five and sixty-six, south of Grant City one or one and a half miles.” It seems from the testimony that the recorder gave a written certificate that there was no incumbrance on the land purchased by Pettis. — 504 — Courts have gone very far in supporting equitable mortgages, but in sueli cases there lias been no dispute as to the land intended to be charged with the lien. It has also been the intention of courts to support deeds inter partes, and in their interpretation not to require the accuracy of description required in sheriffs sales, or other transfers of property made without the consent of the owner. It is unnecessary to quote authorities on this point. They are familiar to the profession, and have been recognized in this court in several eases. This court has gone very far also in supporting sales by sheriffs, as may be seen by reference to the opinion in McPike vs. Allman, (53 Mo., 551) and the authorities therein cited and commented on. The words in the bond, “ the farm owned by me one and one half miles south of Grant City,” may be rejected as conveying no information whatever. It appears very clearly that Holman lived in Buchanan county, and that the place he describes as owned by him had no house on it, and was not at all known in the neighborhood or generally understood to be Holman’s farm, or called by that name. The only description of the land is, that it was in townships sixty-five and sixty-six. No section or range is given. Townships contain thirty-six sections of land, and each section contains six hundred and forty acres. Bacon says: “There be two sorts of ambiguities of words ; the one is ambiguitas patens, and the other latens. Patens is that which appeareth to bo ambiguous upon the deed or instrument; latens is that which1 seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth ambiguity.” This description seems to fall within the explanation of a patent ambiguity. This land is described as in two townships, either of which jvould contain thirty-six times six hundred and forty acres, or upwards of twenty thousand aeres. It is impossible, on the face of the deed, to locate tlie land, and so the clerk of the county decided, when he gave a eer — 505 — tificate that there was no incumbrance on the land conveyed to the defendant Pettis. And we think his opinion was right, and we shall therefore affirm the judgment of the Circuit Court; the other judges concur.