Cass County v. Oldham

75 Mo. 50

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

Hough, J.

On the 8th day of February, 1869, John Q. Oldham executed a mortgage to Cass county on lands described as follows: "West half of lot 1, northwest quarter section 5, and east half lot 1, northeast section 6. The township and range were both omitted. On April 12th, 1873, Oldham executed a deed of trust on the west half lot 1, northwest quarter section 5, and east half lot 1, northeast quarter section 6, township 44, range 32, in favor of one Henry Freese, to secure the payment of a note therein described, bearing the same date and having nine months to run. In March, 1877, the trustee, in execution of the power conferred upon him, sold the land conveyed by said trust deed, and said Freese became the purchaser. The note executed by Oldham on April 12th, 1873, and secured by the trust deed, was in renewal of a note previously given by Oldham to Freese. The present suit was brought by the county to reform the mortgage given to ]t,_ so as to make it state that the land attempted to be conveyed thereby was in township 44 and range 32 — the same land conveyed to Freese.

The record of the mortgage to the county was not constructive notice to Freese that the land mortgaged to him had been previously mortgaged to the county. Campbell v. Johnson, 44 Mo. 247. There is no evidence that Freese had actual notice of the mortgage to the county, and it would be absurd to say that constructive notice puts a man upon inquiry.

Freese was not only a purchaser without notice, but he was also an incumbrancer for value. “ The giving of further time for the payment of an existing debt, by a valid agreement, for any period however short, is a valuable consideration, and is sufficient to support a mortgage as a purchase for a valuable consideration.” Jones on Mortg., §’ 459. The judgment, which was for the defendant, must, therefore, be affirmed.

All concur.