Barrett v. Davis

104 Mo. 549

• Court: Supreme Court of Missouri
• Decided: April 15, 1891
• Status: Published

Opinion

Barclay, J.

— This being a cause of equitable cognizance, it has been necessary to review the facts disclosed by the record of the trial.

I. As to the first count there was some evidence, chiefly by Mrs. Barrett, tending to contradict the essential facts recited in the certificate of acknowledgment. On the other hand, the notary gave a circumstantial and clear account of the transaction just as he described it official^.

In our state, in view of the obvious meaning of the statute on this subject, the courts have felt constrained to hold that such certificates may be avoided by evidence aliunde showing their falsity. Mays v. Pryce (1888), 95 Mo. 603; Pierce v. Georger (1891), 103 Mo. 540; 15 S. W. Rep. 849. That construction has been too long accepted as settled law to require re-examination now. But, in applying it, in view of the recognized presumption of correctness attaching to the acts of public officials, we are of opinion that there should be a clear and decided preponderance of evidence to warrant discarding as false any such certificate. Without reviewing the evidence in detail, it is enough to say that we find no such preponderance here.

We find equally untenable the position of plaintiffs in regard to the alleged interpolation in the instrument (after its delivery) of a description of twenty-acres of land, additional to that admittedly inserted therein.

It was conceded by plaintiffs at the trial, that, on the face of the deed of trust, no trace appeared of any erasure or interpolation. It further was shown that the deed was written in St. Louis, by an attorney unacquainted with the locality of the land (Johnson county), who was furnished the description by Mr. Barrett at the time the latter made the loan. Mr. Barrett testified that the description of the twenty acres. was not in the deed when it was read to him, and that the only land agreed to be incumbered was his wife’s homestead in West Holden, Missouri. The draftsman of the deed and another witness (not a party to this litigation) testified that it was first written as it now reads. The circumstances of the making of the loan were stated, and, from all the evidence to this point, it seems to us. clear, that there has been no change in the instrument since its execution. On both of the foregoing points we perceive no ground to reverse the finding of the trial court in favor of defendants.

II. As to the second count, it may now be asshmed as settled law that the attitude of Mrs. Barrett toward the debt of her husband, secured by the incumbrance on her sole and separate estate, was that of a surety. It may likewise be assumed that Mr. Peck was the creditor when the writing of May 31, 1883, was executed, though, according to the recitals in it, his position was somewhat different. He had been the original lender of' the funds on the note of Mr. Barrett, secured as stated, but had transferred the paper to other hands. On the date last named, the note was overdue and the land had been advertised for sale to satisfy the debt. January 26, 1883, the present plaintiffs had brought a suit in equity, which was then pending in the Johnson county circuit court against the same defendants as now, to set aside the incumbrance in question on grounds substantially identical with those appearing in the first part of their petition in this -case. Their bill was resisted, and the cause was triable the second Monday of June ensuing, 1883.

In this situation of affairs, Messrs. Peck, Barrett, Bowman and Sparks met in St. Louis, May 31, 1883, and the writing, recited fully in the accompanying statement, was signed. Mr. Bowman was then the attorney of Mr. Barrett in litigation between the latter and Messrs. Chouteau and Thatcher. Mr. Sparks was the attorney of Mr. and Mrs. Barrett in the suit to set aside the deed of trust in Johnson county. The accounts of the execution of the writing in question are somewhat at variance, but it will not be necessary to'enter into the details of the differences between the witnesses. It is sufficient to note the salient parts of the testimony as we interpret it.

The writing was the outgrowth of negotiations between Messrs. Peck and Barrett, the object of which, on the part of the former, evidently was to remove the litigation and question affecting and impairing the mortgage security, and, on the part of Mr. Barrett, to avert a sale of his wife’s realty and obtain time to pay his debt.

Mr. Peck testified at the trial of this cause that Mr. Barrett applied to him, requesting this adjustment, said he would pay the costs of the suit then pending, and that, “with the understanding that Mrs. Barrett was to assent to it, I told him that I would take the note up and holdit,” and, “in pursuance of that, this paper was shaped up; Mr. Sparks was sent for, and my understanding was that Mr. Sparks came there as Mrs. Barrett’s attorney.” Mr. Peck further stated that the writing was executed in duplicate (as it now appears) at about the same time, one evening. Messrs. Barrett and Peck each retained one of the originals, and each was produced at the trial.

Mr. Sparks testified that he had no authority to assent on behalf of Mrs. Barrett, and that he so stated .before he signed the paper. This statement Mr. Peck ■denies, adding that, if it had been made, he would not have entered into the arrangement. Mr. Barrett was recalled as a witness after Mr. Peck had testified as indicated, but gave no version of that part of the interview which formed the point of difference last above noted.

Applying the law to these facts, we recognize the full force of the rule which discharges a surety where the creditor makes a contract with the debtor for an extension of time, whereby the former’s right to enforce an existing liability is stayed for any definite period, without the consent of the surety. One of the reasons of this rule is found in equitable considerations, growing out of the surety’s, right to be subrogated to the creditor’s, at any moment, by payment of the debt to the latter.

But the rule itself is now too universally acknowledged to require argument to sustain it. We refer to its reason merely to add that the principle underlying it demands that such a contract, to be effective as a release of the surety, must be one creating a valid and enforceable obligation against the creditor with respect of the enforcement of his claim against the principal •debtor. Where the creditor and debtor enter into an agreement, on adequate consideration, for an extension, upon condition that the surety assent thereto, it does not amount to a release. Of course, there is none if the assent be given; and, if not, then the agreement to extend falls. White v. Middlesworth, 42 Mo. App. 368.

Even where the agreement is in writing, and, on its face, imports an unequivocal extension of time, it may be shown verbally, if such be the case, that it was not to become operative as a contract until the surety assented. As was said of similar testimony by an eminent English judge (Sir William Erlb, C. J.): “ It is in analogy with the delivery of a deed as an escrow ; it neither varies nor contradicts the writing, but suspends the commencement of the obligation.” Wallis v. Littell (1861), 11 C. B. (N. S.) 369. Compare Butler v. Smith (1858), 35 Miss. 457.

Pacts going to show that a writing never acquired original vitality as a contract are not considered as infringing the rule of evidence excluding verbal contradiction of writings. Tracy v. Union Iron Works, 104 Mo. 193.

So it was competent for Mr. Peck to agree with Mr. Barrett to extend the indebtedness of the latter, upon condition of Mrs. Barrett’s consent to that arrangement, without thereby releasing her. The instrument drawn to express the actual agreement, no less than the circumstances of its execution, indicate no purpose on Mr. Peck’s part, and, still less, any execution of a purpose, to extend the time of payment of the indebtedness, without her assent. The paper, as drawn, called for her assent; but, further yet, the principal stipulations between Messrs. Barrett and Peck necessarily involved affirmative concurrence on her part. By them it appeared that the pending suit in the circuit court of Johnson county should be dismissed and the costs therein ($66.10) be paid by the plaintiffs. Mrs. Barrett was the chief party in interest as plaintiff therein, and the purpose of that suit was to invalidate this very incumbrance upon her land. It could not be dismissed without her assent, and its dismissal (and the costs paid therefor) formed an important part of the consideration supporting Mr. Peck’s agreement to give time. Is it reasonable to suppose that the latter intended to grant Mr. Barrett the extension, irrespective of his wife’s consent (the effect of which would be to release her property), while insisting upon a dismissal of the pending suit to thereby strengthen and confirm the original security which the deed of trust gave? We think not.

We do not doubt, in view of the writing itself and of the surrounding facts enlightening its meaning, that the principal agreement for extension was mutually intended to be conditional upon Mrs. Barrett’s consent to its terms.

In this aspect of the case it is wholly immaterial whether her consent was in fact given or not. If not, the supposed agreement to give time was inoperative and constituted no release of her property. If it was, then, of course, she has no ground of complaint.

III. But we believe the conclusion we shall presently announce need not necessarily rest upon such a narrow basis as the application of the legal principles, above declared, affords. We are satisfied, from a thorough consideration of the record, that that conclusion may properly be placed upon broader grounds.

The agreement for extension was dated and closed May 31, 1883. The first suit then pending (between the same parties as are now before the court) was dismissed in vacation, June 6, 1883, by Mr. Sparks, as attorney for Mr. and Mrs. Barrett, the plaintiffs. The costs were paid. The June term of the Johnson circuit court, at which the cause was triable, was then near at hand. The land had been advertised for sale by the trustee.

Mrs. Barrett, as a witness, admitted that she objected to Mr. Barrett’s going to St. Louis at that time, because •she thought “they would get him into some great trouble,” but that he went; on his return she asked, “How is the Peck affair ? Wliat about our case ? ” and lie replied, “I have had that all fixed up. It is settled.”

Tlie written agreement, of May 31, 1883, she said she found (the Sunday before the present suit was brought) in a trunk where she and her husband kept their papers; supposed it was given to her by Mr. Barrett, and she put it away ; that she never authorized anyone to dismiss the first suit.

The present suit was brought December 27, 1887, long after the extension of time had expired, and more than four and a half years after the supposed “settlement,” and the dismissal of the first suit. Let us bring certain legal principles to bear on these facts. In the transaction here in consideration, Mrs. Barrett, as the equitable owner of the land (held to her sole and separate use), was competent to act and contract in respect to it, either personally or by an authorized agent. She was not only capable of validly consenting to the extension of time, so as to bind her separate estate, but was likewise competent to ratify such consent, if given in her name, though without previous authority.

When one appropriates the full benefit of a transaction, taken on his behalf by another without prior authority, it is not then permissible to cast off the burden it imposes. The benefit and burden must be accepted together, or both repudiated. We mean, of course, after knowledge of tlie essential facts of the transaction. But, in the view of a court of equity, where plaintiffs now stand and by whose principles they must be judged, one is not regarded as meeting the full measure of his duty who wilfully closes his eyes to unwelcome facts while exercising vigilance to observe and take advantage of those favorable to him in the same connection.

Whether one actually knows a given fact is often a secret to which he alone has the key, but justice is not so indulgent as to encourage his throwing the key away. Applying to him the principles of common experience, it is held, quite generally, even in actions at law (Van Raalte v. Harrington (1890), 101 Mo. 602; 14 S. W. Rep. 710), and, for stronger reason, in equity, that from facts and circumstances which would naturally put a person of ordinary caution, in the same situation, on an inquiry reasonably leading to a knowledge of the truth, a court may justly infer and find such knowledge. Leavitt v. La Force (1879), 71 Mo. 353. The probative force of such facts and circumstances must depend, in great measure, on the peculiarities of' each case. We have already briefly sketched those which characterize the present one. They are somewhat unique, and sufficiently expressive in themselves to obviate the necessity of much further comment.

That Mrs. Barrett knew there had been some kind of settlement with Mr. Peck she admits. Her suit to set aside the deed of trust was dismissedby her attorney, and she was hence chargeable with knowledge of the dismissal. The advertisement to sell under that instrument was suspended. That some one had assumed to act for her, in some sort of settlement with Mr. Peck, was self-evident, and that her property was relieved thereby of immediate peril, equally so. The date at which she received the writing, containing the agreement, or first obtained access to it, is not disclosed with any exactness, but it plainly does appear that nothing was done in the way of suggesting any dissent to it, on her part, for more than four years from the dismissal of the first suit, and long after all the benefits it gave to the Barretts had been enjoyed.

On this evidence the learned circuit judge could scarcely have found otherwise than that she was, in equity, justly chargeable with knowledge of the terms of agreement with Mr. Peck shortly after it was made, and, necessarily, that her assent had apparently been given to those terms. With such knowledge it became her duty to speak promptly (if ever ) in disowning the act done in her name, if without her sanction. She could not wait to reap the advantages it gave her and then cut down tlie fruits it secured to the other party. We entertain no doubt that four years was an unreasonable delay in the circumstances, and that, after it, she must be held, in equity, to have fully ratified the transaction. Chetwood v. Berrian (1884), 39 N. J. Eq. 203 ; Alexander v. Jones (1884), 64 Iowa, 207; Brigham v. Peters (1854), 1 Gray, 139; Deland v. Bank (1884), 111 Ill. 323; Law v. Cross (1861), 1 Black, 533.

IY. Some objections have been urged to details of defendants’ testimony as incompetent.

In suits of this nature, where the facts come properly in review, this court may discard such parts of the evidence as may have been erroneously admitted in the trial court, without the necessity of directing a new trial.

The conclusion we have reached follows deductions drawn, in the main, from plaintiffs’ own testimony or from facts undisputed or uncontradicted.

The learned trial judge, who had the advantage of a personal view of the parties, found for the defendants. No sufficient reasons have been given for reversing his finding. The judgment is affirmed.

All the members of the court concur.