proper, as was the evidence as to a gift, and | 5. Mortgages 151 (2)-Of two trust deeds for the same reason, supra. by same grantor that securing note maturing first had priority. [6] IV. The refusal of instruction No. 8 for the plaintiffs was proper. It was fully and completely covered by their instruction No. 3, already given by the court. The two instructions have but to be read, to show that they cover the same questions. [7] Nor is there substance in the charge that there was a conflict in the instructions. There were two lines of instructions, as there would be on conflicting proof; but they present fully the two theories of the case. Plaintiffs contended that defendant's possession was under the deceased, and not adverse. Defendant contended that the possession was adverse. The two lines of instructions properly presented the respective theories, and were not in any sense conflicting. Where two mortgages or deeds of trust are simultaneously executed by the same grantor 6. Mortgages 372 (1)-Agreement Plaintiff, claiming under purchaser on foreclosure of trust deed, is not bound by any agreement between the original payee of the where neither purchaser at foreclosure nor any notes and grantee of such deeds as to priority, subsequent purchaser, including plaintiff, had knowledge of such agreement, and the burden There was no error in the trial, and the was upon defendants to show notice. judgment is affirmed. All concur, except WOODSON, J., who is absent. 7. Mortgages 275-Where purchaser upon foreclosure excepted from covenants in his deed another trust deed, his successor was not estopped thereby. Where purchaser of land, upon foreclosure of one of two trust deeds simultaneously executed by grantor to same grantee, excepted in STEWART v. OMAHA LOAN & TRUST CO. covenants of a warranty deed to another the et al. (No. 20879.) other deed of trust, such act only operated to except it from such covenants, and did not estop plaintiff from contesting the lien of such excepted trust deed. 8. Evidence 383 (7)—Plaintiff not bound by deeds to which he is not a party. Plaintiff seeking to quiet title is not bound by recitals in deeds to which he was not a party and under which he does not claim. 9. Mortgages 171(1)-Mortgagee whose note matures subsequent to that under trust deed of equal date has constructive notice of priority. Where grantor granted the same grantee 2. Quieting title 43-Defense should have been limited to issues raised by pleading. In an action to quiet title, where defend-deeds of trust securing notes maturing at difants' answer denies plaintiff's ownership and alleges deed of trust to secure defendants' note is a prior lien over plaintiff's claim, right, and title, and asks its foreclosure, the defense should have been limited to such issues which did not authorize the issue of the postponement of trust deed under foreclosure of which plaintiff claims title by purchase on foreclosure to that of defendant. 3. Appeal and error 232 (12)-Objection that pleadings did not warrant determination held not raised by objection to documentary evidence. In suit to quiet title, objection that the pleadings did not warrant a determination as to the priority of trust deeds was not made by mere objection to documentary evidence which did not bear on such question. 4. Appeal and error below adhered to. ferent times, the record of the trust deeds constituted notice of the matters recorded, and, where there was nothing to indicate which was given priority, the party purchasing the last maturing note took with constructive notice of the other's priority. 10. Quieting title 30 (3)-Prior deed of trust holder not required to make owners of later trust deed parties. Plaintiff, claiming through purchaser under foreclosure of prior deed of trust, was not required to make owners of subsequent deed of trust parties to action to quiet title. Appeal from Circuit Court, Texas County; L. B. Woodside, Judge. Suit to quiet title by John D. Stewart against the Omaha Loan & Trust Company 171(3)-Theory of case and others, in which a judgment was rendered by default, and within three years thereafter James Corbett, as administrator of the estate of Eliza J. Leverich, deceased, petitioned to set aside the judgment finding plain Where parties proceeded as though pleadings in suit to quiet title warranted determination of priority of trust deeds, case on appeal will be tried on same theory. (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 Mcon 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 Febplaintiff, 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 respondent. representing her other than the attempted service by publication upon unknown parties; that no knowledge concerning said proceeding was ever had by said Eliza J. Leverich; and that the petitioner, her administrator, was not apprised of said suit until a short time before the filing of this petition to set aside the judgment. In brief, the petition contained other allegations appropriate and proper to a pleading of this character, not necessary to be set out herein. The petition prayed in conclusion that all parties in interest, referring specifically to those who had acquired title to portions of said land through the plaintiff, be made parties to this suit, and that the judgment be set aside, and that the petitioner be permitted to plead to plaintiff's petition theretofore filed upon which the judgment of default had been entered. Upon a hearing the court set aside the judgment and permitted the administrator to plead to plaintiff's petition. He thereupon filed an answer and a cross-bill alleging that the note for $1,000 was still due and unpaid, and that the deed of trust to secure the payment of same constituted a prior lien or claim upon said land to the right, title, and claim of plaintiff, and that the deed of trust to secure the payment of the $1,000 note be foreclosed on account of its alleged priority as a lien. The sufficiency of the pleadings is not a matter at issue except in so far as plaintiff's contention is concerned that the answer does not plead any facts which would authorize a court of equity to subordinate the lien of the deed of trust under which plaintiff claims to that under which the defendant claims. Aside from this contention, the vexing question is as to which of the two deeds of trust is entitled to priority. WALKER, J. This is a suit to quiet title to certain land in Texas county. The plaintiff prevailed below, and the defendants have appealed. In April, 1901, Edwin McNinch and wife, the owners of the land in question, executed certain notes of even date to the Omaha Loan & Trust Company, three aggregating $140, due respectively April 1, 1902, April 1, 1903, and April 1, 1904, and one other note for $1,000 due April 1, 1908. To secure the payment of these notes the makers executed to the payee two separate deeds of trust, one to secure the payment of the three notes aggregating $140, and the other to secure the payment of the note for $1,000. The same person was named as trustee in each. These deeds were acknowledged on the same day, and subsequently they were simultaneously filed for record in the office of the recorder of deeds for Texas county. In neither is there any reference to the other, nor is there anything other than the respective dates of maturity of the notes therein described, if such can be so construed, to indicate a priority of lien of one over the other. On the 13th day of August, 1904, the deed of trust securing the payment of the three notes for $140 was foreclosed, the land sold, and one W. F. Cunningham became the purchaser. Two years later he conveyed the land by deed of general warranty to Byron De Forrest and Frank Mautz. The grantor convenants in this deed “against all claims, etc., except a deed of trust to the Omaha Loan & Trust Company and to G. P. Rodgers and judgments in Houseden suits." In December, 1909, Frank Mautz and wife conveyed the land by quitclaim deed to Byron De Forrest. This deed contains no reference to any incumbrance. Some 10 or 12 days thereafter Byron De Forrest and wife conveyed the land by warranty deed to John D. Stewart, the plaintiff, who instituted the suit on which the appeal herein is based. After service by publication against unknown parties, a judgment by default was rendered, and within three years thereafter, under section 2103, R. S. 1909, the administrator of the estate of Eliza J. Leverich petitioned the court to set aside 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. The appellant relies for a reversal upon the following errors: (1) The court erred in finding the issues for the plaintiff and in rendering judgment accordingly. (2) The court erred in excluding evidence offered by defendant to prove that the deed of trust under which defendant claims is a first deed of trust, and that the deed of trust under which plaintiff claims is a second deed of trust. [1] I. The rules of procedure in suits to Ry. Co., 216 Mo. loc. cit. 304, 115 S. W. 989; 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 under this statute is to be measured by the pleadings in each particular case. To rule otherwise, as Bond, J., tersely said in Toler v. Edwards, 249 Mo. loc. cit. 160, 155 S. W. 27, would be "to destroy the symmetry of the law." Confirmatory of this conclusion, Lamm, J., said in effect in Wotz v. Venard, 253 Mo. loc. cit. 86, 161 S. W. 765, that this statute is "to be administered in conformity to the code of civil procedure, that is, within the lines of scientific pleading and practice. * * Any other view would make of that remedial act a fruitful womb of confusion and wrong." The ruling seemingly to the contrary in Noble v. Cates, 230 Mo. loc. cit. 202, 130 S. W. 304, "that defendants in an action based upon this statute may, under a general denial, show as a defense any title, legal or equitable, vested in themselves," does not there fore correctly state the law. When a case has been tried without the objection that the pleadings did not raise a certain issue, this objection, when made for the first time in the appellate court, will not be entertained. But two exceptions may be noted to this rule, one that of the court's jurisdiction, and the other that a cause of action has not been stated. These cardinal defects are not affected by waiver, and may be raised at any time. Williams v. Keef, 241 Mo. loc. cit. 375, 145 S. W. 425; Jackson v. Johnson, 248 Mo. 692, 154 S. W. 759. In view of all of which we need not further concern ourselves with the limitations now sought by plaintiff to be placed upon the defendants' right to persist here in the attitude which, free from plaintiff's challenge, was maintained in the trial court. 3 C. J. § 621, p. 725. [5] II. Under well-established principles of law there can be no controversy as to the purpose for which the deeds of trust were given, which was to secure the payment of the notes described in each. Anderson v. Baumgartner, 27 Mo. loc. cit. 87; Potter v. Stevens, 40 Mo. 229; Allen v. Goodrich, 111 Mo. App. 61, 85 S. W. 910; Watson v. Hawkins, 60 Mo. 550. To effect this purpose it was provided in each of these deeds in the conventional terms employed in instruments of this character that upon default in the payment of the notes therein described the land should be sold to satisfy same. These provisions, in the absence of prior equities or any express condition to the contrary, gave the deed of trust securing the notes first maturing priority. Otherwise the purpose [2-4] The defendants' answer herein denies plaintiff's ownership of the land and alleges generally that the deed of trust thereon to secure the payment of the $1,000 note is a prior lien over plaintiff's claim, right, and title. The remainder of the answer is descriptive of the deed of trust and prays for a foreclosure. The defense should have been limited to the issue thus made. This was not done, and it is now contended by the plaintiff that no facts were pleaded by the defendants which would authorize a court of equity to postpone the lien of the deed of trust under which plaintiff claims to that 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 timely, 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 v. 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, 167 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. 304; Degonia v. Railroad, 224 Mo. to his rule. To illustrate: In Thompson v. loc. cit. 588, 123 S. W. 807; Riggs v. Metro. | Field, 38 Mo. 320, several notes, in the hands (222 S.W.) of different assignees, were secured by the same mortgage and fell due at different times. They were held to be payable out of the proceeds of the sale of the property in the order in which they fell due. In Hurck v. Erskine, 45 Mo. 485, we held that the assignee of an earlier maturing note was entitled, as against the mortgagee holding other notes, to priority in the proceeds of the sale of trust property, even though the latter's notes had become due by their own terms before the action was commenced. Ellis v. Lamme, 42 Mo. 153, does not announce a contrary doctrine. In that case there was an express provision in the deed that a later maturing note should be first paid out of the proceeds of the sale of the property, thus showing that the primary object of the deed was to protect the independent sureties on the later maturing note. Following the earlier maturing rule, the Kansas City Court of Appeals, in Freeman v, Elliott, 48 Mo. App. 74, held that, where two notes secured by the same deed of trust are made payable to two separate payees, the rule of priority in the order of maturity will apply, despite the terms of the deed that both notes become due on default in the payment of either. The St. Louis Court of Appeals, in Weary v. Wittmer, 77 Mo. App. 546, held that priority of maturity authorized a presumption of priority of payment; and, to overthrow this presumption, the burden was on the appellant to show that the notes first maturing had been paid, or that the plaintiff was estopped to assert priority of payment. In these cases a single mortgage or deed of trust was given to secure several notes. The rule of priority cannot, however, he held in reason to be different where, as here, separate deeds of trust were given, each to secure the notes therein described. We held in the early case of Thayer v. Campbell, 9 Mo. 280, where a mortgage was executed to secure three distinct debts, that although there was but a single deed of conveyance, yet, as it was executed to secure three several and distinct debts due to three several individuals, it must be regarded as clearly several in its nature, as if those several instruments had been simultaneously executed. The nature of the security afforded is the same whether one mortgage be given to secure each debt or one be given to secure several, if it be kept in mind that the terms of the obligation must be determined from the note, and that the mortgage or deed of trust is collateral and simply intended to secure payment. The legal situation, therefore, in the instant case is exactly the same as if McNinch and wife had only executed one deed of trust securing all of these notes. Had the latter been done, it would scarcely be contended, in the face of our uniform rulings on the subject, that if the land described in the deed of trust had been sold after maturity of the first note, the purchaser would have obtained a complete title. The case of Isett v. Lucas, 17 Iowa, 503, 85 Am. Dec. 572, is so nearly parallel in all its material features with the case at bar that a statement of the facts and the conclusions reached by the court in regard thereto are not inappropriate. The proceeding was to foreclose a mortgage. One Hall purchased of Patterson certain land, giving his two notes payable in one and two years and mortgages to secure each of same. Patterson assigned one of the notes to Tufts. Patterson subsequently obtained judgment of foreclosure against Hall, the maker, on the note first due, no other persons being parties to the proceeding. He assigned this judgment to Lucas. Tufts sold the note last due to Isett and Brewster, who brought this suit to foreclose against Hall and Lucas, claiming that the agreement between Hall and Patterson was that the two mortgages were to be equal liens, and that neither was to have priority over the other. The court, in ruling upon these facts, said: ment, where a mortgage is executed to secure "Independent of any legal and binding agreetwo or more notes maturing at different times, the proceeds arising from a foreclosure of the mortgaged premises should be applied to the payment of the notes in the order in which they fall due. The different installments in a mortgage securing such notes are regarded as so many successive mortgages, each having priority according to the time of its maturity; and where, instead of one mortgage being executed to secure several notes given for the same indebtedness, a separate mortgage is given to secure each note, the rights of the parties are Whether the notes identical. [Citing cases.] thus secured are retained by the payee and the right of priority of payment still attaches mortgagee, or are assigned to different parties, to them; nor does the time of or order in which they are assigned affect such right of priority. "The legal effect, then, of executing two mortgages to secure installments of the same debt, being to give priority as to the proceeds of the mortgaged property to the installments first due, such legal effect cannot be altered or varied by parol testimony, any more than the language of the written instrument itself. [Citing cases.] The parol testimony of Hall, therefore, as to the agreement between him and Patterson in relation to the two mortgages being equal liens, neither to have priority over the other, which is contrary to the legal effect of the mortgages themselves, is incompetent, and cannot be considered for the purpose of altering or varying such legal effect and priority." Under this ruling, which is in accord, in principle, with our own cases, the conclusion is authorized that, where two mortgages or deeds of trust are simultaneously executed by the same grantor to secure different notes to the same grantee, the legal effect is the same as if one mortgage or deed of trust had been executed to secure notes maturing at different times. Schultz v. Plankington Bank, 141 Ill. 116, 30 N. E. 346, 33 Am. St. Rep. 290; Alden v. White, 32 Ind. App. 671, 66 N. E. | ranty to the deeds of trust made by Cunning509, 67 N. E. 949, 102 Am. St. Rep. 261; 1 Jones, Mortgages (5th Ed.) § 607. ham to G. P. Rodgers is subject to the same rule, so far as its application to the plaintiff is concerned, as that in regard to the exception in the covenant of warranty in the deed of trust securing the payment of the $1,000 note. Furthermore, the plaintiff was not a party to these deeds, does not claim under them, and cannot be bound by their recitals, nor can the defendant, as the administrator of Eliza J. Leverich, not being a party to these instruments, set up these recitals in his favor. Jones on Mortgages (5th Ed.) § 746, and cases. [9] The deed of trust given to secure the payment of the $1,000 note upon being recorded, constituted constructive notice of its contents, but the rights of the parties were affected by such notice only to the extent disclosed by the record. There was nothing in the latter to indicate that this deed of trust was to be given priority over the deed under which the foreclosure was had and the land purchased by Cunningham. Powers v. Laffler, 73 Iowa, 283, 34 N. W. 859; Robinson Bank v. Miller, 153 Ill. 244, 38 N. E. 1078, 27 L. R. A. 449, 46 Am. St. Rep. 883. [6] III. Granting, as we have on account of the manner in which the case was tried, the defendants' right to insist here upon the postponement of the lien of the deed of trust securing the notes first maturing to that securing the payment of the $1,000 note, the plaintiff cannot be held to be bound by any agreement which may have been made between the original payee in all of said notes, the Omaha Loan & Trust Company, as to the priority of the deeds securing such notes. Neither the purchaser of the land at the foreclosure sale or any subsequent owner, including the plaintiff, had any knowledge of this agreement. Absent actual notice, the title of a purchaser at a foreclosure sale of land cannot be affected by secret equities between third parties. Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784; Powers v. Kueckhoff, 41 Mo. loc. cit. 431, 97 Am. Dec. 281; Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234. The agreement referred to seems to have been sedulously withheld from the knowledge of the public until March, 1913, or three years 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 mortgagee or trustee for condition broken, is a mere lien for the debt; the substantial ownership remaining in the mortgagor or trustor. Jackson v. Johnson, 248 Mo. 680, 154 S. W. 759; Standard Leather Co. v. Mutual Ins. Co., 131 Mo. App. 701, 111 S. W. 631. When, therefore, the statement appears in our cases, and it is not infrequent, that the legal title after condition broken is vested in the mortgagee or trustee, we do not mean an unlimited investiture of title, but one for effectuating the purpose of the mortgage or trust. Feller v. Lee, 225 Mo. loc. cit. 332, 124 S. W. 1129; Benton Land Co. v. Zeitler, 182 Mo. 251, 81 S. W. 193, 70 L. R. A. 94. However, the latter part of the doctrine as announced in the Patton-Eberhart Case, supra, viz. that within the meaning of the recording laws when a mortgage or deed of trust is [8] The exception in the covenants of war- taken in good faith it is subject only to such [7] IV. The excepting of the deed of trust securing the $1,000 note from the covenants of warranty in the deed made by the purchaser, Cunningham, to the land only operated to except it from such covenants, and did not estop plaintiff from contesting the lien of the deed thus excepted. Brooks v. Owen, 112 Mo. loc. cit. 260, 19 S. W. 723, 20 S. W. 492, and cases; Wood v. Broadley, 76 Mo. 23, 43 Am. Rep. 754; Livingstone v. Murphy, 187 Mass. 315, 72 N. E. 1012, 105 Am. St. Rep. 400; Weed Sewing Mach. Co. v. Emerson, 115 Mass. 554; Stough v. Badger Lbr. Co., 70 Kan. 713, 79 Pac. 737; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Calkins v. Copley, 29 Minn. 471, 13 N. W. 904; Boyer v. Price, 45 Wash. 667, 88 Pac. 1106; Bennett v. Keehn, 67 Wis. 154, 29 N. W. 207, 30 N. W. 112. |