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proper, as was the evidence as to a gift, and j5. Mortgages Pom 151(2)-Of two trust deeds for the same reason, supra.

by same grantor that securing note maturing [6] IV. The refusal of instruction No. 8

first had priority. for the plaintiffs was proper.

It was fully

Where two mortgages or deeds of trust are and completely covered by their instruction simultaneously executed by the same grantor No. 3, already given by the court. The two the effect is the same as if one mortgage or

to secure different notes to the same grantee, instructions have but to be read, to show deed of trust had been executed to secure the that they cover the same questions.

notes maturing at different times so that the [7] Nor is there substance in the charge trust decd securing the first maturing note has that there was a conflict in the instructions. priority. There were two lines of instructions, as there 6. Mortgages 372(1)-Agreement as to would be on conflicting proof; but they pre- which of two trust deeds shall be prior not sent fully the two theories of the case. binding upon purchaser on foreclosure. Plaintiffs contended that defendant's posses. Plaintiff, claiming under purchaser on foresion was under the deceased, and not adverse. closure of trust deed, is not bound by any Defendant contended that the possession was agreement between the original payee of the adverse. The two lines of instructions prop, where neither purchaser at foreclosure nor any

notes and grantee of such deeds as to priority, erly presented the respective theories, and subsequent purchaser, including plaintiff

, had were not in any sense conflicting.

knowledge of such agreement, and the burden There was no error in the trial, and the was upon defendants to show notice. judgment is aflirmed.

7. Mortgages w275—Where purchaser upon All concur, except WOODSON, J., who is

foreclosure excepted from covenants in his absent.

deed another trust deed, his successor was
not estopped thereby.

Where purchaser of land, upon foreclosure

of one of two trust deeds simultaneously exe. STEWART V. OMAHA LOAN & TRUST Co. covenants of a warranty deed to another the

cuted by grantor to same grantee, excepted in et al. (No. 20879.)

other deed of trust, such act only operated to (Supreme Court of Missouri, Division No. 2. except it from such covenants, and did not June 4, 1920. Rehearing Denied June 25,

estop plaintiff from contesting the lien of such

excepted trust deed. 1920.)

8. Evidence 383 (7)--Plaintiff not bound by 1. Judgment Cw248—Relief in suit to quiet deeds to which he is not a party. title measured by pleadings.

Plaintiff seeking to quiet title is not bound In view of Rev. St. 1909, 8$ 2535 and 2536, by recitals in deeds to which he was not a party the rules of procedure in suits to quiet title and under which he does not claim. are the same as in other civil actions, and the relief afforded is to be measured by the plead

9. Mortgages Omw 171(1)-Mortgagee whose ings in each particular case.

note matures subsequent to that under trust

deed of equal date has constructive notice of 2. Quieting title 43-Defense should have priority. been limited to issues raised by pleading.

Where grantor granted the same grantee In an action to quiet title, where defend- deeds of trust securing notes maturing at difants' answer denies plaintiff's ownership and ferent times, the record of the trust deeds conalleges deed of trust to secure defendants' note "stituted notice of the matters recorded, and, is a prior lien over plaintiff's claim, right, and where there was nothing to indicate which was title, and asks its foreclosure, the defense given priority, the party purchasing the last should have been linrited to such issues which maturing note took with constructive notice of did not authorize the issue of the postpone- the other's priority. ment of trust deed under foreclosure of which plaintiff claims title by purchase on foreclosure 10. Quieting title 30(3)--Prior deed of

trust holder not required to make owners of to that of defendant,

later trust deed parties. 3. Appeal and error (232(112)-Objection Plaintiff, claiming through purchaser under

that pleadings did not warrant determination foreclosure of prior deed of trust, was not reheld not raised by objection to documentary quired to make owners of subsequent deed of evidence.

trust parties to action to quiet title. In suit to quiet title, objection that the pleadings did not warrant a determination as

Appeal from Circuit Court, Texas County; to the priority of trust deeds was not made by L. B. Woodside, Judge. mere objection to documentary evidence which did not bear on such question.

Suit to quiet title by John D. Stewart 4. Appeal and error ( 171(3)— Theory of case and others, in which a judgment was render

against the Omaha Loan & Trust Company below adhered to, Where parties proceeded as though plead

ed by default, and within three years there ings in suit to quiet title warranted determi- after James Corbett, as administrator of the nation of priority of trust deeds, case on ap- estate of Eliza J. Leverich, deceased, petipeal will be tried on same theory.

tioned to set aside the judgment tinding plain

(222 S.W.)
tiff the owner in fee, and alleged that de- of trust on said land to secure the payment of
ceased held a note secured by deed of trust same given April 25, 1901, by Edwin Mc-
on the land. On hearing the judgment was Ninch and wife to the trustee of the Omaha
set aside, and the administrator permitted to Loan & Trust Company; that said Eliza J.
plead to plaintiff's petition. Judgment for Leverich died testate in New York in Feb-
plaintiff, and defendants appeal. Affirmed. ruary, 1907; that no service in the suit

Barton & Impey and Hiett & Scott, all of brought by John D. Stewart, the plaintiff
Houston, and H. H. Baldridge, for appellants. herein, in any wise affecting her interest in

Lamar, Lamar & Lamar, of Houston, for said land, was ever had upon her or any one

representing her other than the attempted

service by publication upon unknown parties; WALKER, J. This is a suit to quiet title that no knowledge concerning said proceedto certain land in Texas county. The plain- ing was ever had by said Eliza J. Leverich; tiff prevailed below, and the defendants have and that the petitioner, her administrator, appealed. In April, 1901, Edwin McNinch was not apprised of said suit until a short and wife, the owners of the land in question, time before the filing of this petition to set executed certain notes of even date to the aside the judgment. In brief, che petition Omaha Loan & Trust Company, three aggre-contained other allegations appropriate and gating $140, due respectively April 1, 1902, proper to a pleading of this character, not April 1, 1903, and April 1, 1904, and one oth: necessary to be set out herein. The petition er note for $1,000 due April 1, 1908. To se- prayed in conclusion that all parties in intercure the payment of these notes the makers est, referring specifically to those who had executed to the payee two separate deeds of acquired title to portions of said land through trust, one to secure the payment of the three the plaintiff, be made parties to this suit, and notes aggregating $140, and the other to se- that the judgment be set aside, and that the cure the payment of the note for $1,000. The petitioner be permitted to plead to plaintiff's same person was named as trustee in each. petition theretofore filed upon which the These deeds were acknowledged on the same judgment of default had been entered. Upon day, and subsequently they were simultane- a hearing the court set aside the judgment ously filed for record in the otfice of the re- and permitted the administrator to plead to corder of deeds for Texas county. In neither plaintiff's petition. He thereupon filed an is there any reference to the other, nor is answer and a cross-bill alleging that the note there anything other than the respective for $1,000 was still due and unpaid, and that dates of maturity of the notes therein de- the deed of trust to secure the payment of scribed, if such can be so construed, to indi- same constituted a prior lien or claim upon cate a priority of lien of one over the other. said land to the right, title, and claim of On the 13th day of August, 1904, the deed of plaintiff, and that the deed of trust to secure trust securing the payment of the three notes the payment of the $1,000 note be foreclosed for $140 was foreclosed, the land sold, and on account of its alleged priority as a lien. one W. F. Cunningham became the purchaser. The sufficiency of the pleadings is not a matTwo years later he conveyed the land by ter at issue except in so far as plaintiff's condeed of general warranty to Byron De For- tention is concerned that the answer does not rest and Frank Mautz. The grantor conve- plead any facts which would authorize a nants in this deed "against all claims, etc., court of equity to subordinate the lien of the except a deed of trust to the Omaha Loan & deed of trust under which plaintiff claims to Trust Company and to G. P. Rodgers and that under which the defendant claims. judgments in Houseden suits.” In December, Aside from this contention, the vexing ques1909, Frank Mautz and wife conveyed the tion is as to which of the two deeds of trust land by quitclaim deed to Byron De Forrest. is entitled to priority. This deed contains no reference to any in The appellant relies for a reversal upon cumbrance. Some 10 or 12 days thereafter the following errors: Byron De Forrest and wife conveyed the land (1) The court erred in finding the issues for by warranty deed to John D. Stewart, the the plaintiff and in rendering judgment acplaintiff, who instituted the suit on which the cordingly. appeal herein is based. After service by pub (2) The court erred in excluding evidence lication against unknown parties, a judgment offered by defendant to prove that the deed by default was rendered, and within three of trust under which defendant claims is a years thereafter, under section 2103, R. S. first deed of trust, and that the deed of 1909, the administrator of the estate of Eliza trust under which plaintiff claims a second J. Leverich petitioned the court to set aside deed of trust. the judgment in which it had been found that (3) The court erred in rejecting testimony the plaintiff was the owner in fee of the to prove that when the deed of trust claimed land in question for reasons, among others by defendant was sold to Eliza J. Leverich therein alleged, that Eliza J. Leverich was it was represented to her to be a first mortthe owner of the note for $1,000, and the deed / gage.

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[1] I. The rules of procedure in suits to , Ry. Co., 216 Mo. loc. cit. 304, 115 S. W. 909; quiet title are the same as in other civil ac- Hof v. Transit Co., 213 Mo. loc. cit. 470, 111 S. tions. This is clearly contemplated by sec- W. 1166; Taylor & Sons v. Railroad, 213 tion 2535, R. S. 1909, and is expressly so pro- Mo. loc. cit. 726, 112 S. W. 59; Earls v. Earls vided in section 2536, R. S. 1909. This being (App.) 182 S. W. 1020. true, the relief afforded in a proceeding un- When a case has been tried without the der this statute is to be measured by the objection that the pleadings did not raise a pleadings in each particular case. To rule certain issue, this objection, when made for otherwise, as Bond, J., tersely said in Toler the first time in the appellate court, will not v. Edwards, 249 Mo. loc. cit. 160, 155 S. W. be entertained. But two exceptions may be 27, would be "to destroy the symmetry of the noted to this rule, one that of the court's julaw.” Confirmatory of this conclusion, Lamm, risdiction, and the other that a cause of acJ., said in effect in Wotz v. Venard, 253 Mo. tion has not been stated. These cardinal de loc. cit. 86, 161 S. W. 765, that this statute is fects are not affected by waiver, and may be "to be administered in conformity to the code raised at any time. Williams v. Keef, 241 of civil procedure, that is, within the lines Mo. loc. cit. 375, 145 S. W. 425; Jackson v, of scientific pleading and practice. * Johnson, 248 Mo. 692, 154 S. W. 759. In view Any other view would make of that remedial of all of which we need not further concern act a fruitful womb of confusion and wrong." ourselves with the limitations now sought by The ruling seemingly to the contrary in No- plaintiff to be placed upon the defendants' ble v. Cates, 230 Mo. loc. cit. 202, 130 S. W. right to persist here in the attitude which, 304, “that defendants in an action based up- free from plaintiff's challenge, was maintainon this statute may, under a general denial, ed in the trial court. 3 C. J. & 621, p. 725. show as a defense any title, legal or equita- [5] II. Under well-established principles ble, vested in themselves," does not there. of law there can be no controversy as to the fore correctly state the law.

purpose for which the deeds of trust were [2-4] The defendants' answer herein denies given, which was to secure the payment of

the notes described in each. Anderson y. plaintiff's ownership of the land and alleges Baumgartner, 27 Mo. loc. cit. 87; Potter v. generally that the deed of trust thereon to Stevens, 40 Mo. 229; Allen v. Goodrich, 111 secure the payment of the $1,000 note is a Mo. App. 61, 85 S. W. 910; Watson v. Hawprior lien over plaintiff's claim, right, and ti- kins, 60 Mo. 550. To effect this purpose it tle. The remainder of the answer is descrip- was provided in each of these deeds in the tive of the deed of trust and prays for a conventional terms employed in instruments foreclosure. The defense should have been of this character that upon default in the limited to the issue thus made. This was payment of the notes therein described the not done, and it is now contended by the land should be sold to satisfy same. These plaintiff that no facts were pleaded by the provisions, in the absence of prior equities defendants which would authorize a court of or any express condition to the contrary, equity to postpone the lien of the deed of gave the deed of trust securing the notes first trust under which plaintiff claims to that maturing priority. Otherwise the purpose alleged to be held by defendant administra- for which the deeds were given would be tor, and that he should have been limited in rendered ineffectual. This for the reason his defense to that made by his answer. As that a note constitutes the obligation and dean abstract statement of the rules of proce- fines its terms, while a deed of trust is meredure this is correct. But the limitation now ly collateral and is intended to secure the sought to be imposed is not tinely, and was payment of the note. Morgan v. Martien, waived by the plaintiff in not objecting at the 32 Mo. 438; Owings v. McKenzie, 133 Mo. time to the claim of priority thus interposed. 323, 33 S. W. 802, 40 L. R. A. 154; Frye F. During the trial the plaintiff contented him- Shepherd, 173 Mo. App. loc. cit. 209, 158 S. self with technical objections to the introduc-w. 717; Board of Trustees v. Peirsol, 161 tion of certain evidence, principally documen- Mo. 270, 61 S. W. 811. This conclusion as to tary, but having no tendency to determine the priority is based upon what is termed the question of priority between the two deeds of earlier maturing rule, recognized as controltrust. The trial was conducted as though ling in this state as contradistinguished from the answer had set up the equitable defense the pro rata and prior assignment rules now objected to by the plaintiff. The case will which obtain in some other jurisdictions. be reviewed, therefore, upon the theory sanc- The earlier maturing rule was first definitely tioned by the parties and recognized by the promulgated in this state in Mitchell v. trial court. McMurray v. McMurray, 258 Mo. Ladew, 36 Mo. 526, 88 Am. Dec. 156, to the loc. cit. 416, 107 S. W.513; Honea v. Railroad, effect that notes secured by the same deed 245 Mo. loc. cit. 645, 151 S. W. 119; Brier v. of trust have priority in the order in which Bank, 225 Mo. loc. cit. 684, 125 S. W. 469; they fall due. Subsequent rulings under Williams v. Railroad, 233 Mo. loc. cit. 675, which the minor facts are different conform 136 S. W. 30+; Degonia v. Railroad, 224 Mo. to his rule. To illustrate: In Thompson •


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(222 S.W.) of ditferent assignees, were secured by the first note, the purchaser would have obtained same mortgage and fell due at different a complete title. The case of Isett v. Lucas, times. They were held to be payable out of 17 Iowa, 503, 85 Am. Dec. 572, is so nearly the proceeds of the sale of the property in parallel in all its material features with the the order in which they fell due. In Hurck case at bar that a statement of the facts and v. Erskine, 45 Mo. 485, we held that the as the conclusions reached by the court in resignee of an earlier maturing note was en-gard thereto are not inappropriate. The titled, as against the mortgagee holding proceeding was to foreclose a mortgage. other notes, to priority in the proceeds of the One Hall purchased of Patterson certain sale of trust property, even though the lat- land, giving his two notes payable in one ter's notes had become due by their own and two years and mortgages to secure each terms before the action was commenced. El- of same. Patterson assigned one of the notes lis v. Lamme, 42 Mo. 153, does not announce to Tufts. Patterson subsequently obtained a contrary doctrine. In that case there was judgment of foreclosure against Hall, the an express provision in the deed that a later maker, on the note first due, no other permaturing note should be first paid out of the sons being parties to the proceeding. He asproceeds of the sale of the property, thus signed this judgment to Lucas. Tufts sold showing that the primary object of the deed the note last due to Isett and Brewster, who was to protect the independent sureties on brought this suit to foreclose against Hall the later maturing note. Following the ear- and Lucas, claiming that the agreement belier maturing rule, the Kansas City Court of tween Hall and Patterson was that the two Appeals, in Freeman y, Elliott, 48 Mo. App. mortgages were to be equal liens, and that 74, held that, where two notes secured by the neither was to have priority over the other. same deed of trust are made payable to two The court, in ruling upon these facts, said: separate payees, the rule of priority in the

"Independent of any legal and binding agreeorder of maturity will apply, despite the ment, where a mortgage is executed to secure terms of the deed that both notes become due two or more notes maturing at different times, on default in the payment of either. The the proceeds arising from a foreclosure of the St. Louis Court of Appeals, in Weary v. mortgaged premises should be applied to the Wittmer, 77 Mo. App. 546, held that priority payment of the notes in the order in which they of maturity authorized a presumption of fall due. The different installments in a mortpriority of payment; and, to overthrow this page securing such notes are regarded as so presumption, the burden was on the appel. ity according to the time of its maturity; and

many successive mortgages, each having priorlant to show that the notes first maturing where, instead of one mortgage being executed had been paid, or that the plaintiff was es- to secure several notes given for the same intopped to assert priority of payment.

debtedness, a separate mortgage is given to seIn these cases a single mortgage or deed of cure each note, the rights of the parties are

Whether the notes trust was given to secure several notes. The identical. [Citing cases.) rule of priority cannot, however, he held in thus secured are retained by the payee and

mortgagee, or are assigned to different parties, reason to be different where, as here, separate the right of priority of payment still attaches deeds of trust were given, each to secure the to them; nor does the time of or order in which notes therein described. We held in the ear- they are assigned affect such right of priority. ly case of Thayer y. Campbell, 9 Mo. 280, "The legal effect, then, of executing two mortwhere a mortgage was executed to secure gages to secure installments of the same debt, three distinct debts, that although there was the mortgaged property to the installments

being to give priority as to the proceeds of but a single deed of conveyance, yet, as it first due, such legal effect cannot be altered or was executed to secure three several and dis- varied by parol testimony, any more than the tinct debts due to three several individuals, language of the written instrument itself. it must be regarded as clearly several in its [Citing cases.] The parol testimony of Hall, nature, as if those several instruments had therefore, as to the agreement between him been simultaneously executed. The nature

and Patterson in relation to the two mortgages of the security afforded is the same whether being equal liens, neither to have priority over

the other, which is contrary to the legal effect one mortgage be given to secure each debt or of the mortgages themselves, is incompetent, one be given to secure several, if it be kept and cannot be considered for the purpose of alin mind that the terms of the obligation tering or varying such legal effect and priority.” must be determined from the note, and that the mortgage or deed of trust is collateral Under this ruling, which is in accord, in and simply intended to secure payment. principle, with our own cases, the conclusion

The legal situation, therefore, in the in- is authorized that, where two mortgages or stant case is exactly the same as if McNinch deeds of trust are simultaneously executed by and wife had only executed one deed of trust the same grantor to secure different notes to securing all of these notes. Had the latter the same grantee, the legal effect is the same been done, it would scarcely be contended, as if one mortgage or deed of trust had been in the face of our uniform rulings on the executed to secure notes maturing at difsubject, that if the land described in the deed ferent times. Schultz v. Plankington Bank, of trust had been sold after maturity of the | 141 111, 116, 30 N. E. 346, 33 Am. St. Rep. 290 ;

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Alden v. White, 32 Ind. App. 671, 66 N. E. ( ranty to the deeds of trust made by Cunning509, 67 N. E, 919, 102 Am. St. Rep. 261; 1 ham to G. P. Rodgers is subject to the same Jones, Mortgages (5th Ed.) $ 607.

rule, so far as its application to the plain. [6] III. Granting, as we have on account tiff is concerned, as that in regard to the of the manner in which the case was tried, exception in the covenant of warranty in the the defendants' right to insist here upon deed of trust securing the payment of the the postponement of the lien of the deed of $1,000 note. Furthermore, the plaintiff was trust securing the notes first maturing to that not a party to these deeds, does not claim unsecuring the payment of the $1,000 note, the der them, and cannot be bound by their recit. plaintiff cannot be held to be bound by any als, nor can the defendant, as the administra. agreement which may have been made be- tor of Eliza J. Leverich, not being a party to tween the original payee in all of said notes, | these instruments, set up these recitals in the Omaha Loan & Trust Company, as to his favor. Jones on Mortgages (5th Ed.) : the priority of the deeds securing such notes. 746, and cases. Neither the purchaser of the land at the [9] The deed of trust given to secure the foreclosure sale or any subsequent owner, payment of the $1,000 note upon being reincluding the plaintiff, had any knowledge of corded, constituted constructive notice of this agreement. Absent actual notice, the its contents, but the rights of the parties title of a purchaser at a foreclosure sale of were affected by such notice only to the erland cannot be affected by secret equities be- tent disclosed by the record. There was nothtween third parties. Hume v. Hopkins, 140 ing in the latter to indicate that this deed of Mo. 65, 41 S. W. 784; Powers v. Kueckhoff, 41 trust was to be given priority over the deed Mo. loc. cit. 431, 97 Am. Dec. 281; Beatie v. under which the foreclosure was had and Butler, 21 Mo. 313, 64 Am. Dec. 234. The the land purchased by Cunningham. Powers agreement referred to seems to have been v. Laffler, 73 Iowa, 283, 34 N. W. 859; Robsedulously withheld from the knowledge of inson Bank v. Miller, 153 Ill. 244, 38 N. E. the public until March, 1913, or three years 1078, 27 L. R. A. 449, 46 Am. St. Rep. 883. after the forclosure sale, when its first pro- The two deeds of trust were of record nouncement is made in the petition for review when Eliza J. Leverich is alleged to have and the answer filed by the administrator purchased the $1,000 note, and she took the of Eliza J. Leverich. At the time, therefore, same with constructive potice of the priority of the forclosure sale and the purchase of the of the deed securing the notes first maturing. land by Cunningham, no one other than the Smith v. Boyd, 162 Mo. 146, 62 S. W. 439; parties to the agreement having had any | Patton v. Eberhart, 52 Iowa, 67, 2 N. W. 954. means of knowing that any other than the In Patton v. Eberhart, supra, the doctrine original payee in all of the notes, to wit, the is explicitly announced that a mortgagee of Omaha Loan & Trust Company, was the own- real estate is a purchaser within the meaning er of same, and the burden being upon the de- of the recording laws, and his mortgage, fendants to establish such notice (Hendricks when taken in good faith, is subject only to v. Calloway, 211 Mo. loc. cit. 561, 111 S. W. such prior liens as are of record at the time 60; McMurray v. McMurray, 258 Mo. loc. of the execution of the mortgage. The doccit. 417, 167 S. W. 513), which they have trine thus announced, so far as it relates to failed to do, no probative force, as affecting the character of the mortgagee's or trustee's plaintiff's rights, is to be given the testimony interest in the land, is too broadly stated to in regard to said agreement (Potts v. Smith, accord with our rulings. Here a mortgage 178 S. W. 881).

or a deed of trust, until entry by the mort[7] IV. The excepting of the deed of trust gagee or trustee for condition broken, is a securing the $1,000 note from the covenants | mere lien for the debt; the substantial of warranty in the deed made by the pur- ownership remaining in the mortgagor or chaser, Cunningham to the land only operat- trustor. Jackson v. Johnson, 248 Mo. 650, ed to except it from such covenants, and 154 S. W. 759; Standard Leather Co. v. did not estop plaintiff from contesting the Mutual Ins. Co., 131 Mo. App. 701, 111 S. W. lien of the deed thus excepted. Brooks v. 631. When, therefore, the statement appears Owen, 112 Mo. loc. cit. 260, 19 S. W. 723, 20 in our cases, and it is not infrequent, that S. W. 492, and cases; Wood v. Broadley, 76 the legal title after condition broken is vested Mo. 23, 43 Am. Rep. 754; Livingstone v. in the mortgagee or trustee, we do not mean Murphy, 187 Mass, 315, 72 N. E. 1012, 105 an unlimited investiture of title, but one for Am. St. Rep. 400; Weed Sewing Mach. Co. effectuating the purpose of the mortgage or v. Emerson, 115 Mass. 554; Stough v. Badger trust. Feller v. Lee, 225 Mo. loc. cit. 332, 124 Lbr, Co., 70 Kan. 713, 79 Pac. 737; Gerdine S. W. 1129; Benton Land Co. v. Zeitler, 182 v. Menage, 41 Minn. 417, 43 N. W. 91; Cal- Mo. 251, 81 S. W. 193, 70 L. R. A. 94. Howkins v. Copley, 29 Minn. 471, 13 N. W. 904; ever, the latter part of the doctrine as anBoyer v. Price, 45 Wash. 667, 88 Pac. 1106; nounced in the Patton-Eberhart Case, supra, Bennett v. Keehn, 67 Wis. 154, 29 N. W. 207, viz. that within the meaning of the record30 N. W. 112.

ing laws when a mortgage or deed of trust is

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