author: WILLIAMSON, J.

text:
    FIRST NATIONAL BANK OF BEEVILLE, TEXAS, v. SECURITY MUTUAL LIFE INSURANCE COMPANY OF BINGHAMTON, NEW YORK, Plaintiff in Error.
    Division Two,
    June 25, 1920.
    1. INSURANCE POLICY: Cause of Action. The petition in this action upon a matured insurance policy, assigned by the insured to a bank, by which the company agreed to pay a designated sum upon its maturity, states a cause of action. Besides, the practice of failing to demur to the petition, but simply objecting to the introduction of any evidence to sustain its allegations, is not- to be commended.
    2. -: Assignment: Cancellation. Where the insured had the right by the terms of the policy to change the beneficiary, it cannot be maintained that an exercise of that right, without the consent of the named beneficiary, made the assignment void.
    3. -: Pledge to Secure Debt: Limitations: Personal Right. The defense of limitations - is a privilege personal to the debtor or to those standing in privity to him by inheritance or estate. In an action on an insurance policy, which had been pledged by the insured and his w.ife to a bank to secure the payment of his debt, the defense' that the debt was barred by time and therefore that the pledge was barred by limitations is not available to the insurance company. Besides, the suit being on the policy, and not on the debt, the defense of limitations is not' pertinent to the issues.
    4. —-: Assignment: Public Policy: To Pay Existing Debt. A contract by which the insured assigns his life insurance policy to a bank in payment of an existing debt is not against public policy. A purchase of a life insurance policy is held to be against public policy, for that it gives to the purchaser an interest in the death of the insured, only when the purchaser has no insurable interest in the life of the insured and the relation of debtor and creditor between them does not exist. If such relation exists, the assignment is not void, but is at least valid to the extent to which the policy becomes security for the existing debt and for all advances thereafter made by the assignee; the balance, if any, upon maturity of the policy, becoming payable to the beneficiaries originally designated. Besides, if the insurance company fears that some one other than the assignee may set up a claim for the excess above the amount of the assignee’s advancements, it should pay the amount due on the policy into court and ' ask that the various claimants be compelled to interplead for it.
    5. -: — : Loan: Concealment. Under the allegations in this case the court did not err in making defendant’s instruction require the jury to find that the signature of the insured to a loan agreement was obtained by fraudulent “concealments” as well as by “false and fraudulent misrepresentations,” and thereby consistent with the instruction given for plaintiff.
    6. -: Loan Agreement: Obtained by Fraud. The evidence in this case is sufficient to support a finding by the jury that a certain loan agreement, alleged to have been executed by the insured, at a time when the amount it states he promised to pay would have simply increased his indebtedness with no corresponding benefit, was obtained by fraud, and that he did not sign it, although an expert on handwriting testified the signature was his.
    7. -: Attorney’s Fee: Foreign Contract. In a suit on an insurance contract made in Texas, in which the plaintiff is a resident of Texas, where all the premiums were paid, an allowance of an attorney’s fee, no statute of Texas allowing it being either pleaded or proven, cannot be made. The allowance of an attorney’s fee relates to the right, and not to the remedy; and if the statute of Texas, in such case, permits a taxing of such a fee, it should be pleaded and proven.
    Appeal from Jackson Circuit Court. — Hon. Allen G. Southern, Judge.

      Affirmed (on condition.)

      Roland Hughes for plaintiff in error.
    (1) There conld be no recovery in this case for vexations delay and attorney’s fees. This was a Texas contract, and the penalties imposed by onr statute do not extend to the obligations of a Texas contract. Thompson v. Traders Ins. Co., 169 Mo. 12. (2) In an ordinary life insurance policy the beneficiary named in the policy becomes the owner of it the moment it is issued, and the person procuring the insurance cannot by any subsequent act of his, transfer to others the interest of the beneficiary. Splawn v. Chew, 60 Tex. 534; U. S. Casualty Co. v. Kacer, 169 Mo. 301; Blum v. N. T. Life, 197 Mo. 522. (3) The debt of Kennedy to the bank, to secure which Agnes Kennedy pledged the policy, was barred by Statute of Limitations before her death, and the policy was released from liability. The mere physical possession of the paper gave the bank no rights in it. Cheves v. Anders, 87 Tex. 287 ; 2 Briefs on Insurance Law.by Cooley, 1112. (4) Plaintiff, being a national bank, could neither purchase this insurance policy nor loan money on it. It possibly might hold it to secure the past indebtedness of $1,034.61, if this debt had not been barred by limitation, or the time of payment extended, or the debt canceled and the security thereby released. First Nat. Bank v. First Nat. Bank, 92 Atl. 1076, 247 Penn. 44; McBoyle v. Union Natl. Bank, 122 Pac. 458, 162 Cal. '277. (5) The debt for which Mrs. Kennedy pledged the policy being barred by limitation during her life, the security became released by act of law, and the bank could not sue on the policy. R. S. 1909, sec. 1892; Washington Life Ins. 'Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. Rep. 123; Vernon’s Sayles’s Statutes of Texas, art. 5688. (6) Where the wife assigned a policy to secure the debt of the husband the policy stands in the relation of surety for the debtor, and an extension of time or renewal of the note, without the consent of the wife, released the policy. Allis v. Ware, 28 Minn. 166; 27 Am. & Eng. Ene. Law (2 Ed.), 433; Brant on Suretyship & Guar., secs. 21, 22. The burden would be on plaintiff to show her consent. Touhy v. Woods, 122 Cal. 665; Same case, 55 Pac. 683; Okey v. Sigler, 47 N. W. 911; Same ease, 82 Iowa, 94; United States v. McIntyre, 111 Fed. 590. (7) The reply admits that Kennedy signed the note or certificate of loan pleaded in the answer. A party cannot traverse and at the same time confess and avoid. In this respect the reply is ambiguous. Cable v. McDaniel, 33 Mo. 363; Bliss on Code Pld. (2 Ed.) secs. 317, .332; Bredell v. Alexander, 8 Mo. App. 110; Barrett v. Donnelly, 38 Mo. 492; Adams v.'Trigg, 37 Mo. 143. The contract of the bank with Kennedy, was against public policy and void. “ Public policy will not recognize the transfer of a life policy of insurance to another whose interest is involved in the early death of the .insured.” Price v. Supreme Lodge, 68 Tex. 361; Tripp v. Jordan, 177 Mo. App. 339 ; Heusner v. Ins. Co., 47 Mo. App. 343; Ins. Co. ,v. Richardson, 99 Mo. App. 93; Bruer v. Ins. Co., 100 Mo. App. 627; Jenkins v. Morrow, 131 Mo. App. 288. (8) The petition does not allege facts which show that the insurance money was due. Shaver v. Mercantile Town Mut., 79 Mo. App. 420; Wanschaff v. Masonic Ben. Assn., 41 Mo. App. 206.

      Charles N. Sadler for defendant in error.
    (1) Plaintiff was entitled to recover attorney’s fees under Sec. 7068, R. S. 1909. (a) Defendant says it was a Texas contract. Regardless of whether it was a Texas, New York or Missouri contract, there was no pleading or proof that the laws of Texas were different from Missouri, and in the absence of proof it will be presumed that the laws of another state are the same as the laws of the forum. Shelton v. Railroad, 167 Mo. App. 404; Gibson v. Railroad, 225 Mo. 473; Warren v. Lusk, 16 Mo. 102; Selking v. Hebei, 1 Mo. App. 340; Bergner v. Ry. Co., 13 Mo. App. 499; Silver v. Ry. Co., 21 Mo. App. 5; McDonald v. Ins. Co., 154 Mo. 618; R. S. 1909, sec. 7068; Thompson v. Ins. Co., 169 Mo. 12; Stix v. Ins. Co., 175 Mo. App. 171; Coscarella v. Ins. Co., 175 Mo. App. 130. (b) This being a life insurance policy executed by a New York Company in New York upon the life of a man then living in Texas, and sued upon in Missouri, the laws of Missouri are applicable. Beneficiaries in life insurance policies providing for change of beneficiary do not obtain such a vested interest that it cannot be ousted. (2) Mrs. Kennedy joined in the assignment of this policy, the policy provides in case of her death it shall be payable to A. G. Kennedy’s estate, and she was dead long before this policy matured or suit brought. 25 Cyc. 892. Even if the debt was barred this defendant could not raise the point. It is a personal •one, and if A. G. Kennedy did not want to avail himself of it this defendant could not avoid its just debts in such a manner. Columbia Ave. Sav. Fund Co. v. Strawn, 93 Tex. 48. (3) Plaintiff did not buy the policy sued on, nor did it loan money on it; it did not violate any national bank act. It had a perfect right to take an assignment of the policy as collateral security for its past due debt, and then in order to protect its security had a right to pay the premiums. This is all it did under the testimony. McBoyle v. Union Natl. Bank, 122 Pac. 458; 5 Cyc. 591. Even if it had bought the policy, or loaned money on it, this defendant could not raise that question. First Natl. Bank v. Wilson, 165 Pac. 859; Merchants Natl. Bank v. Weston, 168 Pac. 587 ; 5 Cyc. 590; Wherry v. Hale,' 77 Mo. 20; Thornton v. Natl. Exchange Bank, 71 Mo. 221; Matthews v. Skinker, 62 Mo. 329. (4) The reply does not admit that Kennedy signed the so-called note, but expressly denies it. Even if the reply was ambiguous it is too late for plaintiff in error to complain now, and it could cut no figure in this case.
   WILLIAMSON, J.

The First National Bank of Beeville, Texas (hereinafter called the Bank), brought suit in the Circuit Court of Jackson County, Missouri, against - the Security Mutual Life Insurance Company of Binghamton, New York (hereinafter called the Insurance Company), to recover an amount claimed to be due upon a life insurance policy issued by the company upon the life of Albert G-. Kennedy. Plaintiff recovered a judgment in the sum of $7315.14 and $750 for attorney’s fees. The company has duly brought the cause to this court upon a writ of error.

The suit grew out of the following facts: Albert G-. Kennedy held a life insurance policy, nine years old, amount not stated and cash surrender value not disclosed, issued by the defendant. He was indebted to plaintiff in the gum of $1032.65. The policy was pledged for the payment of this debt. In August, 1905, at the solicitation of defendant, Kennedy took out the policy here in suit for $8000 on the twenty-payment plan. For the new policy, he surrendered the old one, and, so defendant says, gave his written promise to pay to defendant $3301.52, with interest at six per cent per annum,, secured by a lien upon the new policy. The plaintiff, at defendant’s request, consented to surrender the old policy and accept the new 'one in lieu thereof, and for eleven years paid the annual premium of $488.96. But plaintiff, for nine years after the new policy was issued, did not know of the agreement that the new policy should stand subject to defendant’s lien for $3301.52. ■Neither did Kennedy, as he says.

In the end plaintiff had advanced, in loans, interest aud premiums, a sum in excess of $7160 on the new policy, when it matured. Its maturity value was $7160. But defendant claimed the right to deduct $'3301.52, together with interest at six per cent per annum from August 9, 1905, ^ amounting in all to $5480.51, leaving, as defendant claimed, $1200, which it was willing to pay to the legal holder of the policy. Plaintiff declined to accept this offer and brought this suit. This is a bird’s-eye view of the case. Further facts follow.

The plaintiff, after the usual formal allegations, averred that the defendant on the 9th day of August, 1904, insured the life of Albert 0. Kennedy in the sum of $8000, to be paid upon his death to his wife, Agnqs Kennedy; that it was provided in the policy that if the insured were living on the 9th day of August, 1915, the defendant would then pay to the legal holder or beneficiary of the policy, the sum of $5960, plus such profits as the defendant might have apportioned to this policy; that on the 14th day of September, 1905, said Kennedy and his wife, in consideration of an indebtedness in the sum of $1865.65 then due from said Kennedy to plaintiff, assigned the policy in writing to plaintiff, including in the- assignment all rights which had accrued or which might accrue under the policy; that defendant was duly notified of the assignment and consentedthereto, and on the 25th day of September, 1905, the defendant by a writing indorsed on the policy, substituted plaintiff as the beneficiary in lieu of Mrs. Kennedy, and that thereby plaintiff became and had ever since remained the owner thereof; that plaintiff had paid all premiums subsequently accruing, upon this policy, and that the total amount of the premiums so paid was $4888.96; that on the 9th day of August, 1915, the insured was still living, and was theii indebted to plaintiff in the sum of $5212.12, for money loaned and premiums paid as aforesaid; that on said date the profits which had been apportioned to this policy by defendant amounted to $1200, and that defendant thereupon became liable to plaintiff in the total sum of said profits plus the guaranteed value of the policy on said date, amounting to the total sum of $7160; that payment of said liability had been demanded, but that defendant had vexatiously refused to pay. Plaintiff prayed judgment in the sum of $7160, and for attorney’s fees in the sum of $750, and costs.

The pertinent portions of defendant’s answer are, in effect, as follows: Except for formal admissions as to the corporate existence of plaintiff and defendant, and an admission that defendant had issued the policy in question, the answer contained, first, a general denial. This was followed by averments to the effect that the promise to pay the holder or beneficiary of the policy the sum of $5960 and accrued profits, was conditional, in this, that out of said sums should first be deducted all indebtedness of the insured to the defendant; that on August 9, 1904, the insured had executed and delivered to defendant a writing acknowledging the receipt of a loan from defendant in the sum of $3301.52, and agreeing that said sum, together with any additional loans upon the policy, with six per cent interest on such loan or loans, should become due at the end of the distribution period or prior thereto upon the death of the insured, or upon his failure to make any payment due to defendant, and the total should be paid out of the "proceeds of the policy; that the policy was issued in consideration of the execution and delivery of said writing by said Kennedy; that the policy was dated back nine years, thus giving Kennedy the benefit of a lower premium rate; that the policy called for the payment of twenty annual premiums in order to entitle the holder to the benefits specified in the policy, but that the premiums for the preceding nine years above-mentioned were paid only by the loan agreement above-mentioned, and, in fact, only eleven premiums had been paid upon the policy; that the profits apportioned to the policy on August 9th, 1915, amounted only to $720.51, so that its value on that date was only $6680.51; that the loan above-mentioned then amounted to $5480.51, and that the cash surrender value of the policy, after deducting the amount of the loan, was therefore only $1200, which sum defendant had offered to pay upon the delivery of the policy.

For another defense, defendant stated that the policy was executed and delivered in Texas and was a Texas contract; the debt of the insured to plaintiff was an individual obligation; that Mrs. Kennedy joined in the assignment only to secure' her husband’s debt to plaintiff, and that after the payment of such indebtedness, the remainder should be paid to Mrs. Kennedy; that after the payment of three annual premiums, the insured was entitled to borrow on the policy, and that in lieu of said three payments, the insured executed the loan agreement above mentioned; that both when the policy and loan agreement were executed and now it was provided by the laws of Texas (quoting the statute) that non-negotiable instruments were subject, when in the hands of an assignee, to every defense that might have been pleaded against the assignor, and that therefore defendant had a right to credit the indebtness claimed to be due it as aforesaid upon the amount due on the policy.

As another defense, the defendant affirmed that plaintiff, being a national bank, could not lawfully purchase the policy, but could only take it as security for a pre-existing debt; that, at the date when the insured assigned the policy to plaintiff, plaintiff’s debt against him was past due and “became and was barred’’ by the four-year Statute of Limitations of Texas (quoting it); that the plaintiff’s debt against the insured was barred long before this suit was brought, and that thereby plaintiff became merely a bailee of the policy for Mrs. Kennedy, and had no right to maintain an action thereon against defendant; that after plaintiff’s debt became barred as ■aforesaid, plaintiff and insured, by agreement between themselves but without- Mrs. Kennedy’s consent, extended the time for the payment of such indebtedness, and that thereby plaintiff’s lien upon said policy lapsed.

For a further defense, defendant asserted that the policy was mot pledged to secure the plaintiff in the payment of the annual premiums; that each premium paid by plaintiff became a debt due it from Kennedy as soon as plaintiff paid it, and that all of them except the last were barred by the two-year Statute of Limitations of Texas (quoting it), and that all except the last five premium payments were barred by the five-year Statute of Limitations of Missouri.

Defendant for a further defense sets up the fact, as claimed by it, that long before the maturity of the policy plaintiff was informed of defendant’s debt and claim against said policy, and thereafter continued to pay premiums thereon, and is therefore now estopped to deny defendant’s right to deduct its debt from the aniount due on the policy.

Having thus set up some ten defenses, the insurance company asserted that it had fully answered, and prayed to be dismissed. The reply, after a general denial, in substance averred that Kennedy never executed the loan agreement; that if he did sign it his signature was procured by fraud; that said agreement was without consideration and void as against public policy; that at the time the policy above named was issued, Kennedy was the holder of another policy in défendant company, which was held by plaintiff as security for Kennedy’s indebtedness to it, as defendant well knew; that defendant informed plaintiff that said original policy had lapsed for non-payment of a premium note given by the insured, but that if plaintiff would pay that note and an annual premium of $488, a total of $800, defendant would reinstate the policy; that defendant made no mention of the loan agreement above mentioned; that plaintiff was thereby induced to pay said $800 and took an assignment of the policy and paid defendant over $4000 in premiums before defendant informed plaintiff of defendant’s alleged claim against said policy; that as soon as plaintiff learned of defendant’s claim plaintiff denied its validity, but made the two remaining premium payments in order to protect itself for premiums and money already paid by it, by keeping said policy in force until maturity; and that by its silence defendant was estopped now to assert its pretended claim.

Plaintiff’s evidence tended to support its pleadings, and defendant introduced or offered evidence tending to support its answer, except as otherwise hereinafter indicated. So far as necessary, the instructions will be mentioned in the opinion proper. The verdict and judgment, were in plaintiff’s favor.

Appellant has not favored us with an assignment of errors, but has set out under the heading of Points and Authorities thirteen paragraphs which we will treat as in lieu of assignments of error. [Mugan v. Wheeler, 241 Mo. 376.] We will dispose of these questions in the order in which they are argued.

Action°f

I. Appellant first suggests that the petition fails to state a cause of action, in that it fails to allege a demand for payment by respondent prior to the filing of the suit. This contention is based upon the claim that by the terms of the policy, appellant agreed upon the maturity of the policy to do one of five things named in the policy “at the option or demand of the person entitled to exercise the option.” We find no such provision in the policy. Furthermore, the petition contains an averment that “the plaintiff has kept and performed all of the terms and conditions of said policy of life insurance required to be kept and performed by the plaintiff, both before and after the maturity of the claim herein sued for.” Appellant did not demur to the petition, but did object to the introduction of any evidence, upon the ground that the petition failed to state a cause of action. This practice is not to be commended. The allegations of the petition are sufficient as against such an objection.

Assignment

II. Appellant next argues that Mrs. Kennedy was the beneficiary of the policy; that the only consent she ever §’ave the assignment was to the effect that the policy might be pledged to secure her husband’s indebtedness to respondent in the sum of $1034.65, and that all subsequent arrangements were between the respondent and the insured only, and without her knowledge or consent, and were void as to her; that when the insured assigned the policy outright to plaintiff, this arrangement was a cancellation of the debt for which Mrs. Kennedy pledged the policy, and the pledge was thereby released and respondent’s lien upon the policy was thereby destroyed.

This argument fails to take into account several important matters. There is no privity between Mrs. Kennedy and appellant, and on what theory appellant undertakes in this action to assert her rights, is not apparent. Furthermore, the insured had the right under the terms of the policy to change the beneficiary, and exercised that right in favor of the respondent. Appellant consented to this change. Again, Mrs. Kennedy’s rights were conditioned upon her remaining the beneficiary in the policy and surviving her husband, and the evidence shows .that she died about 1907 or 1909, during her husband’s lifetime and several years before the maturity of the policy, and that prior to her death, respondent had been made the beneficiary in the policy. By an express provision of the policy, any payments becoming due under it were to be made to the estate of the insured, or to his assigns, in the event of the death of Mrs. Kennedy prior to the maturity of the policy. Where, as here, the right to change the beneficiary is reserved, the insured may assign the policy at will. [Fuos v. Dietrich, 101 S. W. (Tex. Civ. App.) 291; 6 Cooley’s Briefs on Ins. p. 424; Splawn v. Chew, 60 Tex. 532, l. c. 534.] Under the option clause of the policy, the appellant agreed to pay upon August 9, 1915, upon the surrender of the policy by the insured or his assigns, the full sum of $5960, plus accured profits, subject to existing indebtedness, provided the insured was then living and all premiums had been paid. The insured was living upon that date, and all premiums had been paid. Mrs. Kennedy was then dead, and respondent was then the holder of this policy by assignment. We rule this point against the appellant.

. mutations.

III. Appellant’s next contention is that the respondent’s debt became barred by the four-year Statute of Limitations of Texas, and for that reason respondent cannot recover. This statute was offered in 6v^eiiee^ anci excluded by the court. The debt to which appellant here refers is Kennedy’s original indebtedness to respondent, to secure which the policy was pledged. As to this debt, appellant contends that Mrs. Kennedy held the relation of surety, and that the pledge of the policy was released by operation of law when the claim became barred by the Statute of Limitations. This record discloses numerous pertinent answers to this contention, but two will suffice. The right to plead the Statute of Limitations is a privilege personal to the debtor or to those standing in privity with him by inheritance or estate, such as personal representatives, heirs, grantees or mortgagees. [1 Wood on Limitations (4 Ed.), p. 142, and cases there cited.] Appellant occupies no such relation either to the insured or to Mrs. Kennedy, except, perhaps, as to the so-called loan agreement, to which further reference will be made. Furthermore, this is not an action on the debt, but on the policy. Limitation did not begin to run until the policy matured. [Harde v. Germania Life Ins. Co., 153 S. W. (Tex. Civ. App.) 666, l. c. 669; Bush v. Kansas City Life Ins. Co., 214 S. W. (Mo.) 175, l. c. 179.] We decide this contention against appellant.

Policy.

IV. Appellant asserts that the contract for the purchase of this policy by respondent is void as against public policy. The reason is said to lie in the fact that in such case the purchaser has an interest in the death of the insured. Price v. Supreme Lodge, 68 Tex. 361, i-s Uted in support of this contention, The plaintiff in that case had no insurable interest in the life of the insured, nor did the relation of debtor and creditor exist between them. The Price case expressly recognizes an exception to the rule therein announced when the relation of debtor and creditor does exist. In such cases, practically all of the authorities, including the Price case, hold that the assignment is not void, but is at least valid to the extent to which the policy becomes security for the existing debt and for all advances thereafter made by the assignee upon the policy. The balance, if any, upon the maturity of the policy becomes payable to beneficiaries originally designated. This is the rule in this State, as shown by the following cases which, with commendable frankness, appellant cites: Tripp v. Insurance Co., 177 Mo. App. 339, l. c. 343; Jenkins v. Morrow, 131 Mo. App. 288, l. c. 296; Bruer v. Kansas Mut. Life Ins. Co., 100 Mo. App. 540, l. c. 544. This is also the rule in the United States Supréme Court. [Cammack v. Lewis, 15 Wall. 643, l. c. 648; Warnock v. Davis, 104 U. S. 775, l. c. 779.] See, also, Peoria Life Ins. Co. v. Hines, 132 Ill. App. 642, l. c. 647; Reed v. Provident Sav. Life Assurance Soc., 190 N. Y. 111, l. c. 119. If, therefore, appellant feared that some one other than respondent might set up a claim to any balance due upon this policy in excess of the amount of respondent’s claims, it. was its-duty to bring such parties into court and require them to interplead. It could easily have relieved itself of any burden in the mattSr by paying the fund into court. This course is pointed out as a proper one in Cheeves v. Anders, 87 Tex. 287, l. c. 292, also cited by appellant, in the following language:

“When an insurance company has issued a policy upon the life of a person payable to one who has no insurable interest in the' life insured, or when a policy has been assigned to one having no such interest, the insurance company must nevertheless pay the full amount of the policy, if otherwise liable, because it has so contracted, and it is no concern of the insurer as to who gets the proceeds, except to see that it is paid to the proper parties under its agreement. It is simply required to perform its contract, and the law will dispose of the money according to the rights of the parties. [Ins. Co. v. Williams, 79 Tex. 637, and authorities cited.]”

In the instant case, respondent’s demand is made up of its original claim against the insured, amounting to $1865.65 on September 14, 1905, and premiums thereafter paid by it amounting to $4888.96, which sums, with interest at six per cent per annum from the maturity of the policy, amount to the sum for which the verdict'was returned, exclusive of attorney’s fees. The total consumed the entire amount of respondent’s liability under the policy. It had contracted -to pay this amount to the holder of the policy at maturity. Eespondent held the policy at maturity. Hence, respondent was entitled to recover. There is no merit in appellant’s contention on this point.

Assignment^1 Demand. ’

Y. Appellant avers that instruction’ number one given for respondent is erroneous. This instruction told the jury to find for plaintiff if the jury believed that the insured on or about September 14, 1905, assigned the policy to the bank; that the bank was still the ^10^er °f the policy, and that the insured was living- at the date of the trial. There was substantial evidence to support a verdict in respondent’s favor upon all of those facts. The instruction did not purport to cover the whole case. The evidence also showed that appellant had admitted its liability to the legal holder of the policy in the sum of $1200, and indeed liability to the legal holder of the policy to that extent is admitted in the answer. The instruction required the jury to find that respondent was the assignee, and on that point was sufficient. Appellant claims that the instruction was erroneous in not requiring the jury to find that Mrs. Kennedy had executed an assignment of the policy, because the ownership was in her. Her only interest at any time was that of contingent beneficiary. The beneficiary had been changed, by consent of appellant. The insured had the absolute right under the policy to change the beneficiary. The wife’s consent was unnecessary. Mrs. Kennedy was dead and thus the only contingencies upon which she might have had a beneficial interest had been extinguished, both by the substitution of a new beneficiary and by her death prior to the death of the insured. It is said that the instruction did not require the jury to find that a demand had been made. The evidence shows that under date of August 13, 1915, respondent, referring to its claims against this policy, wrote appellant, saying:

‘•We propose to have every dollar coming to us in this settlement, want nothing- more -and will accept nothing less. Advise us promptly your intentions, that we may know your attitude. We do not wish to resort to drastic action till you have had ample opportunity to settle this contract in accordance with the terms of your policy. ’ ’

W<e think this was a demand. The evidence also shows a flat statement by one of respondent’s witnesses, referring to payment, that “of course we demanded it.” As we have shown, no demand was necessary, demand had been made, and the suit was a demand, in any event. Not only so, but during the trial respondent, upon a suggestion that no demand had been made, offered to dismiss its suit and pay the costs if appellant would pay the claim, and appellant refused to do so. There was no reversible error here.

But it is said that the instruction authorizes a verdict for respondent without regard to the validity or invalidity of the so-called loan agreement asserted by appellant. This is true, but appellant admitted liability to the legal holder of the policy to the extent of $1200, and the jury, by this instruction, was required to find respondent to he the legal holder of that document, before finding a verdict in respondent’s favor.. The instruction did not fix the amount for which the jury should find for plaintiff, but left that for another instruction. These criticisms are groundless.

Concealments.

VI. Instruction number two given in behalf of respondent, is assailed on the ground that it is inconsistent with instruction number four asked by appellant, and modifi.ed and §'iven by the court. This instruction, in effect, told the jury that if the insured did not sign the loan agreement, or if his signature thereto was secured by “fraudulent representations or concealments” on the part of respondent and that “he did not know or understand that it was an agreement to pay respondent $3301.52 and that he did not in fact make any such agreement,” then appellant was not entitled to deduct that sum or any part thereof from the maturity value of the policy.

Instruction number four, above-mentioned, informed the jury that appellant was entitled to deduct the amount designated in the loan agreement, unless it was ‘ ‘ obtained by false and fraudulent representations,” thus making no reference to fraudulent “concealments” mentioned in instruction number two. Tbe reply denied that the insured' ever executed the loan agreement, and then pleaded that his signature thereto was obtained, if at all, “by fraud and misrepresentation; that said Kennedy did not know or intend to sign any such paper and did not know that any charge, such as [is] set forth in said paper was made against him.” These allegations were not assailed by motion to make more definite and certain, or otherwise, in the trial court, and are, we think, sufficient after verdict. [Rutledge v. Swinney, 261 Mo. 128, l. c. 141.] We also think that under these circumstances, they are sufficiently definite to support an instruction on fraudulent concealment, such as is contained in instruction two. Such concealment is, by reasonable inference, within the scope of the allegations of the reply. Error, to justify reversal, must be material. [Shinn v. Railroad, 248 Mo. 173, l. c. 180.] The fact that such fraudulent concealment is not mentioned in instruction number four, if error at all, is error in favor of appellant, and of this it cannot complain. Hence appellant’s contention on this point is overruled.

0PFraud,

VII. Appellant contends that there is no evidence to support the finding of the jury that the loan agreement was obtained by fraud. The evidence on this point is confined to the deposition of A. G-. Kennedy, the insured. It covers several pages of the abstract, and for that reason we will state its substance rather than encumber' this opinion by setting it out in full.

Kennedy had no pecuniary interest, other than the payment of his indebtedness to respondent, in denying the execution of the loan agreement, but he emphatically and repeatedly did deny having signed it. He admitted having signed other papers connected with the policy at the time the loan agreement was said to have been signed, but says that the loan agreement was not so much as mentioned to him. The agreement admitted an indebted ness of $3301.52 on the part of the insured to appellant. It is called a “loan” in the agreement, but appellant elaims it was to evidence the difference in the annual-premiums for nine years, between a policy formerly held by Kennedy and the policy here in suit. The former policy was surrendered at the time the present policy was issued, and this loan agreement is claimed to have been executed at that time. The evidence shows that at that time Kennedy was hard pressed financially, in debt and seeking to borrow money. The cash surrender value of the old policy was apparently much less than $3300, and by entering into this loan agreement, Kennedy would have been increasing his indebtedness with no corresponding benefit. Furthermore, the agent representing the appellant, with whom Kennedy transacted this busi-ness, was not produc'ed as a witness, nor was any reason given for a failure to produce him. It is worthy of remark, also, that when Kennedy’s deposition was taken, this loan agreement was not presented for his inspection, although appellant then had possession of the document; appellant’s whole claim is based upon this agreement, and the genuineness of Kennedy’s signature was disputed. Appellant, by counsel, attended the taking of the deposition and cross-examined the witness. From these and various other circumstances appearing in evidence, the jury was, we think, warranted in finding that the loan agreement was never in fact signed by Kennedy, or, if signed by him, that his signature was fraudulently obtained. Appellant’s evidence on this point consisted solely of the testimony of an expert on handwriting, who compared the signature on the loan agreement with various signatures admittedly made by Kennedy. The expert witness expressed the opinion that the signature to the loan agreement was in Kennedy’s handwriting. The. weight of this evidence was, of course, for the jury. We think there was sufficient evidence.on this point to support the verdict.

Attorney’s Fee.

VIII. The appellant claims that error was committed in allowing an attorney’s fee in behalf of respondent, for the reason that this is a Texas contract and no statute of ^at state authorizing such an allowance was pleaded. In thijs contention appellant is clearly right. This contract was made in Texas. Respondent is a resident of Texas, paid the premiums there, and demanded performance of the contract in that state. The Texas statute, if- any there is on this proposition, is not pleaded. We do not take judicial notice of the statutes of a sister state, and if such a statute as would authorize the allowance of an attorney’s fee exists in that state, it should have been pleaded and proven in the same manner as any other fact. [Fidelity Loan Securities Co. v. Moore, 217 S. W. (Mo.) 286, l. c. 289.] The allowance of an attorney’s fee relates to the right and not to the remedy. ■ No attorney’s fee should have been allowed. [Thompson v. Traders’ Ins. Co., 169 Mo. 12, l. c. 29; Ayers v. Continental Ins. Co., 217 S. W. (Mo. App.) 550, l. c. 551.]

Appellant’s contention that the reply admits the execution of the loan agreement by the insured is not borne out by the record. The reply plainly denies it. - Various other complaints of appellant are also without foundation, and for that reason will not be discussed, although we have'considered all of them. We have passed upon all questions that appellant thought sufficiently important to dignify with an argument, and upon some that it did not argue. Except as to the allowance-of the attorney’s fee as above noted, the decision of the trial court was right. Its essential justice commends it to our consideration. ■ ■

Appellant’s conduct, as revealed by this record, is noi such as to enlist our sympathies. At the time it took the old benefit certificate — for that, apparently, is what it was — and issued the policy here in suit to Kennedy, the respondent held the old policy in pledge to secure a debt of a little more than $1000. Appellant knew this fact. Without revealing the fact to respondent, it obtained from Kennedy (by fraud, if Kennedy is to be believed), an agreement to pay appellant $3300. This sum was to be a lien upon the new policy, but no suggestion of that fact appeared upon the policy itself. For nine years thereafter, while respondent held the new policy in pledge for its debt and the premiums it was paying, appellant accepted the annual payments of $488 from' respondent in silence, and thereby created the fund out of which it now seeks to pay its claim of $3300, and interest, leaving only $1200 to be paid to respondent as its return on an investment of approximately $6000, extending over a period of eleven years. It is too plain for argument that respondent never would have entered into such an arrangement with knowledge of appellant’s claim. It is-speaking mildly to say that appellant’s conduct savors strongly of intentional over-reaching. Business acumen may become too acute to be consistent with fair dealing. Had appellant dealt openly and fairly with the insured and with respondent, there would have been no occasion for this litigation. We are not disposed, in view of these facts, to strain a point to aid appellant. So far as we aie concerned, the tree may lie where it has fallen.

The error in allowing the attorney’s fee can easily be cured. If the respondent will, within ten days, file a remittitur of the amount of the attorney’s fee, $750, as of date of the date of the judgment, March 16, 1917, the judgment will be affirmed. Otherwise, it will be reversed and remanded fpr further proceedings consistent with this opinion. It is so ordered;

All concur.


source: Caselaw Access Project

author: RAILEY C.

license: Public Domain

text:
    FANNIE DUNBAR et al., Appellants, v. CHARLES T. SIMS et al.
    Division Two,
    June 25, 1920.
    1. WILL: Power to Sell: Vested Remainder. A will by which testator devised all his real estate to his wife for and during her natural life and at her death “to go and vest absolutely” in his children eaually, with power and authority in his wife “to sell and convey any or all of said real estate as she may see fit and proper,” created a vested equitable estate in remainder in his children, subject to the life estate, and power of disposition given to the wife, and gave to the children power, prior to the widow’s death, to sell and convey their aliquot parts.
    2. -: -: -: Right to Possession. A will which gave to testator’s wife his real estate for life and then provided that “at her death, I will and devise that all my real estate shall go and vest absolutely in fee in my seven children . . . equally, share and share alike,” did not show a definite intention that the title was not to vest in the children until the death of the wife, hut said words relate to the time when the children should have possession, and have nothing to do with the vesting of the title, which became effective upon testator’s death.
    3. -: -: -: Conveyance By Children: Partition. Where the remaindermen took a vested equitable remainder in the estate and after the death of testator and before the death of the life tenant conveyed their interest therein, they have no further claim upon the property, and are not entitled to share in its partition.
    Appeal from Balls Circuit Court. — Hon. W. T. Ragland, Judge.
    Affirmed.

      Mahan, Smith & Mahan and M. L. Farres for appellants.
    (1) The will, as clearly expressed on the face thereof, shows a definite intention by the testator that the title was' not to be vested in the children until the death of the executrix, for he says: “And at her death I will and devise, that all my real estate- shall go and vest absolutely in fee in my seven children equally, share and share alike.” Buxton v. Kroeger, 219 Mo. 224; St. Louis B. L. Assn. v. Fuller, 182 Mo. 93; Hardy v. Clarkson, 87 Mo. 171; Tesson v. Newman, 62 Mo. 1.98; Taylor v. Adams, 93 Mo. App. 277; Emmerson v. Hughes, 110 Mo. 627. (2) Silas E. Sims, by his will, did not intend that the title to the real estate, should vest prior to the time when it would be known that the executrix who had power to sell, had not sold the land, for until her death it could not be known who would have the land, whether the children, and which ones, or some other person, to whom the executrix might convey the land. Hardy v. Clarkson, 87 Mo. 171; Taylor v. Adams, 93 Mo. App. 277; Preston v. Brant, 96 Mo. 552, 15 Am. St. 128; Marard v. Pavey, 128 HI., 430, 15 Am. St. 120.; Olney v. Hull, 21 Pick. 311; Thomas v. Luddington, 104 Mass. 193; 13 Cyc.. 647; Warne v. Vorge, 258 Mo. 162. (3) There was no present capacity to convey an absolute title to the remainder in the children any time prior to the death of Mary E. Sims, the executrix,, and none of them question that her deed to the Atlas Portland Cement Company carried the title. She alone had “the present capacity to convey an absolute title to the remainder.” Tiedeman on Real Propery, sec. 397, and note; Buxton v. Kroeger,.219 Mo. 224; Buxton v. Runn, 219 Mo. 278. (4) A conveyance of an undivided fractional part is quite a different thing from “all right, title and interest.” None of the parties plaintiff undertook to convey any particular undivided portion, or any funds arising from a sale of the lands. Johnson v. Johnson, 170 Mo. 34; Llewellyn v. Llewellyn, 122 Mo. App. 467; Llewellyn v. Lewis, 163 S. W. 545. (5) The deeds under which defendants claim the funds of the sate to the Atlas Portland Cement Company, of the parts of plaintiffs, gave them no right thereto. There were no attempted assignments of any real estate converted into personalty, or of any distributive share of the plaintiffs in the estate of their father. Llewellyn v. Llewellyn, 122, Mo. App. 467; Johnson v. Johnson, 170 Mo. 34; Llewellyn v. Lewis, 163 S. W. 545. (6) By the words ol the grant, “all the right, title and interest,” the conveyance was only coextensive with the grant, and was not a conveyance of a one-seventh, or any particular part, or interest, and not a warranty, as to any farther assnran ;es. Butcher y. Circle, 60 Mo. 140; Gibson v. Chouteau’s Heirs, 39 Mo. 536 ; Bogy v. Schaub, 13' Mo. 365; Pell v. Jackson, 11 Wend. 110; Bradford v. Wolfe, 103 Mo. 397; Wilson v. Fisher, 172 Mo. 21.

      J- 0. Allison and T. E. Allison for respondents.
    (1) The will clearly ^reates a life estate in his widow, with power of sale, and vested the remainder in fee to his seven children named in the will. Waddell v. Waddell, 99 Mo. 338; Jones v. Waters, 17 Mo. 587; Aubuchon v. Bender, 44 Mo. 566; Byrne v. France, 131 Mo. 639; Jefferson v. Tendall, 167 Mo. 218; Roberts v. Crune, 173- Mo. 572.; Gannon v. Albright, 188 Mo. 238; Edgar v. Emerson, 235 Mo. 552; Gates v. Silbert, 157 Mo. 254; Warne v. Gorge, 258 Mo. 162; Chew v. Kellar, 100 Mo. 362. The chief case relied on by appellants is the ease of Buxton v. Kroeger, 219 Mo. 224. In that case the title did not vest in the children until ten years after the youngest of them should become of age, and then only in such of them as were then living. In the case at bar there can be no uncertainty as to the persons who are to take in remainder, because the testator specifically named them. (2) Vested or contingent remainders are determined not by the uncertainty of enjoying the remainder, but by the uncertainty of the vesting of the estate ; the uncertainty of the persons who are to take in remainder. Rodney v. Landon, 104 Mo. 257; Emmerson v. Hughes, 110 Mo. 630; Cross v. Hock, 149 Mo. 332; Shoer v. Carter, 120 Mo. 409; Harbison v; James, 90 Mo. 411; Chew v. Keller, 100 Mo. 362. Where words of futurity are used in creating a remainder, they will be held to refer to the time of enjoyment, rather than to the time of vesting the title. Tindall v. Tindall, 167 Mo. 226; Chew v. Kellar, 100 Mo. 368. (3) The power of sale will not convert a life estate into a fee. Roth v. Rauschenbusch, 173 Mo. 582; Romjue v. Randolph, 166 Mo. App. 87. (4) However, if it were true, which is the contention of the appellants, that the will created a contingent remainder in the children, even then their interests were alienable by quitclaim deeds. Lackland v. Nev-ins, 3 Mo. App. 335; Goldman v„ Simmonds, 113 Mo. 122; White v. McPheeters, 75 Mo. 286 ;• Brown v. Fulkerson, 125 Mo. 400; R. S. 1909, sec. 2787. The deeds of the plaintiffs, even if construed as quitclaim deeds, being for valuable consideration, as expressed in the deeds, conveyed their interests in the land to the grantees therein. In White v. McPheeters, supra, it was held that a contingent remainder would pass by execution sale. It would certainly pass by quitclaim deed.
   RAILEY C.

This action was brought in the- Cir,cuit Court of Ralls County, Missouri, for the partition of the real estate described in petition; and for an accounting of the rents, profits and money alleged to have been received by defendants.

Silas E. Sims died in Ralls. County, in 1907, the owner of above mentioned real estate, leaving a will. He left surviving him his widow, Mary E. Sims, and his children, Charles T. Sims, Enoch Sims, Luther Sims, George Edward Sims, Lee Roy Sims, 'Arch Sims, and Fannie Dunbar. Fannie Dunbar, Lee Roy Sims and George Edward Sims, are plaintiffs herein, and Charles T. Sims, Enoch Sims, Luther Sims and Arch Sims are defendants.

On March 25, 1909, plaintiff George E. Sims, and wife, executed and delivered to defendant Archie Sims, their warranty deed for the expressed consideration of $800, conveying all their right, title and interest in and to the real estate described in petition.

On February 10, 1909, plaintiff Lee Roy Sims, and wife, executed and delivered to defendant Charles T. Sims, their quitclaim deed, for the expressed consideration of $625, conveying all their right, title and interest in said land.

On October 18, 1909, plaintiff Fannie Dunbar executed and delivered her warranty deed to defendant, Archie Sims, for the expressed consideration of $1,500, conveying to him all of her right, title and interest in said land.

Afterwards, on July 2, 1910, said Mary E. Sims, under the power vested in her by the will of her husband, sold, by deed duty executed, a right of way fifty feet wide across said land for $3,500, to the Atlas Portland Cement Company, a corporation. It appears from the evidence, that neither of the plaintiffs herein received any part of said $3,500.

The widow, Mary E. Sims, died April 24, 1917.

The will of Silas E. Sims, was executed on the —■ day of February, 1907. ’ It was offered in evidence, and contains five separate paragraphs. Number 1 provides for the payment of his debts, etc.; paragraph 2 gave to the widow, absolutely, all of his personal property, subject to the payment of his debts; paragraph 4 named his wife, Mary E. Sims, as executrix, with the direction and request, that she be not required to give bond. The third and fifth paragraphs, read as follows -. •

“Item Third: I will and devise all of my real estate to my wife, Mary E. Sims, for and during her natural life, and at her death, I will and devise that all my real estate shall go and vest absolutely in fee, in my seven children, namely, Charles T. Sims, Enoch Sims, George Edward Sims, Luther Sims, Lee Roy Sims, Arch Sims, and Fannie Dunbar, equally share and share alike.

“Item Fifth: I will and direct that my said executrix, Mary E. Sims, shall have power, and I hereby give her power and authority to sell and convey any or all of my real estate as she may see fit and proper, and make good and perfect title to the same in fee simple to the purchaser and to make distribution of the proceeds of such- sale among my said children and herself,” etc.

The deeds heretofore mentioned, from plaintiffs to Archie Sims, and Charles T. Sims, were duly recorded in Ralls County, Missouri.

On March 5, 1918, the trial court found the issues in favor of defendants, and entered its decreé according-, ly. Plaintiffs, in due time, filed motions for a new trial, and in arrest of judgment. Both motions were overruled, and the cause was duly appealed by them to this court.

Kematader.

I. There is practically no dispute over the facts in this case, as heretofore set out. It is contended by appellants that the children of testator acquired no vested interest as remaindermen in the real estate aforesaid, prior to the death of the widow, Mary E. Sims, on April 24, 1917; and that, by reason thereof, the plaintiffs had no interest in their father's estate, which was the subject of conveyance, at the time they executed their respective deeds to Archie and Charles T. Sims. This contention does not appeal to us as being sound. On the contrary, we are decidedly of the opinion, that upon the death of testator, in 1907, his widow-, Mary E. Sims, by virtue of paragraphs three and five of the will aforesaid, became vested with a life estate, in the real estate in controversy, with full power of disposition during her life; and that upon the death of testator in 1907, his seven children heretofore named, became vested with an equitable' estate in remainder, subject to the life estate and power of disposition given to the widow aforesaid. [Huntington Real Estate Co. v. Megaree, 217 S. W. 301; Trigg v. Trigg, 192. S. W. l. c. 1014 and cases cited; Schneider v. Kloepple, 270 Mo. 389, 390; Priest v. McFarland, 262 Mo. 229; Tallent v. Fitzpatrick and Kaiser, 253 Mo. l. c. 13, 15, 161 S. W. 689; Burnet v. Burnet, 244 Mo. 491, 505-6-7, 148 S. W. 872; Gibson v. Gibson, 239 Mo. 490, 144 S. W. 770; Edgar v. Huff, 235 Mo. 552, 560-1-2; Grace v. Perry, 197 Mo. l. c. 562, 95 S. W. 878.]

In the absence of any provision in the will calling for a different construction, the foregoing authorities are conclusive against appellants, as to the merits of this controversy.

possession.

II. It is insisted, however, by appellants, that the will, as clearly expressed on its face, shows a definite' intention by the testator, that the title was not to be Vested in the children until the death of the executrix, for he says.: “And at her death I will and devise that all my real estate shall go and vest absolutely in fee, in my seven children, . . . equally, share and share alike. ’ ’

Such expressions as are found in the above quotation have frequently conn* before the courts for consideration, and have uniformly been construed, when considered in the light of foregoing facts, to relate to the times, when the devisees shall have possession, and have nothing to do with the vesting of the estate. [Jones v. Waters, 17 Mo. 587; Collier’s Will, 40 Mo. 288; Chew v. Keller, 100 Mo. l. c. 368; Byrne v. France, 131 Mo. 639, 646-7; Tindall v. Tindall, 167 Mo. 218, 226; Heady v. Hollman, 251 Mo. 632, 638; Henderson v. Calhoun, 183 S. W. (Mo.) 584; Huntington Real Estate Co. v. Megaree, 217 S. W. (Mo.) l. c. 304; 2 Underhill on The Law of Wills, sec. 861; 2 Jarman on Wills (6 Ed.), p. 1357; Anderson v. Menefee, 174 S. W. (Tex. Civ. App.) l. c. 908; Rhode Island Hospital Trust Co. v. Noyes, 26 R. I. 334, 58 Atl. 999.]

A single quotation is sufficient to indicate the trend of judicial opinion, in respect to this matter. In Chew v. Keller, 100 Mo. l. c. 368, Black, J., said: “The law favors vested estates, and, where there is a doubt as to whether the remainder is vested or contingent, the courts will construe it as a vested estate. ... The expressions that they, Levin Baker and others, are not to take possession of the property devised ‘until the death of Jemima Lindell,’ and that ‘upon her death’ the devisees shall take the parts as tenants in common, all relate to the times when the devisees shall have-possession, and have nothing, to do with the vesting-of the estate.”

Aside from the other authorities. cited, the conclusion reached by this court in the recent case of Huntington Real Estate Co. v. Megaree, 217 S. W. l. c. 304-5, settles the above controversy adversely to appellants. Testator, having given to his Avife a life estate in said land, which carried with it the right of possession during her life, and having also given her the right to sell and convey said property, if she saw fit to do so, why should the title not vest, upon the death of testator, in his children, subject to the widow’s life estate, and right of disposition under the terms of the will? As the remaindermen could not interfere with the widow’s rights thereunder, we discover nothing upon the face of said instrument, which discloses any reason for testator withholding the title of the remaindermen, under the circumstances aforesaid, until the death of testatrix, rather than have the same become effective, at his own death.

In our opinion, the foregoing contention of appellants, is supported by neither reason nor authority.

III. Having heretofore reached the conclusion, that upon the death of testator in 1907, George E. Sims, Lee Roy Sims and Fannie Dunbar, each became vested with the. equitable title, as remaindermen, to the undivided one-seventh of the real estate owned by testator at that time, subject to the life estate and power of disposition given the widow, it necessarily follows, that the deeds from appellants to their brothers heretofore mentioned, conveyed, to the grantees therein named all the respective interests which said grantors owned in the real estafe aforesaid, and that by reason of the foregoing they have no valid claim or title to the property in controversy. [Oldaker v. Spiking, 210 S. W. (Mo.) 62-3.]

The judgment of the trial court in favor of respondents, is accordingly affirmed.

White and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WALKER, J.

text:
    JOHN D. STEWART v. OMAHA LOAN & TRUST COMPANY et al., Appellants.
    Division Two,
    June 25, 1920.
    1. QUIETING TITLE: Pleading: Issues: Waiver. In a suit to ascertain and determine title, the relief is to he measured by the pleadings in each particular case, and the defense should be limited to the issues set up in the answer; but if the case is tried without the objection that the pleadings do not raise a certain issue, the objection when raised for the first time in the appellate court will not be entertained, but will be considered waived, unless it amounts to a denial of the court’s jurisdiction or that sufficient facts to constitute a cause of action have not been stated. [Disapproving the announcement in Noble v. Gates, 230 Mo. 1. c. 202 “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.”]
    2. DEEDS OF TRUST: Priority. In the absence of prior equities or express contrary conditions, of two deeds of trust upon the same land executed and recorded at the same time, the one securing the note first maturing takes priority; and if the one securing the earlier-maturing" note is foreclosed, the purchaser takes the title.
    3. -: -: Notice of Agreement Between Maker and Payee Absent actual notice, the title of the purchaser at a foreclosure sale of a deed of trust is not affected by secret equities or agreements between third parties. Where two deeds of trust on the same land, to secure different notes maturing on different dates, were executed and recorded at the same time, the title acquired by the purchaser at a foreclosure sale under the one securing the note first maturing is not affected by any secret agreement between the maker and the payee that the other deed of trust was to be a prior lien, nor by a representation to the assignee by the payee upon an assignment of the later-maturing note that it was secured by a first mortgage, unless said purchaser had prior actual knowledge of such agreement or representation. The purchaser, without actual knowledge, is bound by only such notice as the recorded instruments. or other records give him.
    4. -: --: Warranties in Deed: Exception: Estoppel. Two deeds of trust on the same land, securing notes maturing on different dates, payable to the same payee, were executed and recorded at the same time. The one securing the notes first maturing was foreclosed, and the purchaser, in his deed to another, warranted the title against all claims except the other deed o£ trust. Held, that this exception did not estop said grantee from contesting the lien of said other deed of trust; nor can the assignee of the later-maturing note secured by said other deed of trust, not being a party to the purchaser’s deed or the deed of his grantee to plaintiff, set up the exception in his favor.
    5. -: Notice: Quieting Title: Parties. Within the meaning of the recording laws when a deed of trust is taken in good faith it is subject to only such prior equities as are of record at the time; and if the record reveals no prior equities, a plaintiff, who has purchased under the one. of two simultaneous deeds of trust which secures the note first maturing, is not required to make the parties to the deed of trust securing the later-maturing note defendants to his action to quiet title.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.

    Affirmed.

      Barton $ Impey, Hiett S Scott and H. H. Bald-ridge for appellants.
    (1) It cannot be successfully claimed that tbe plaintiff bas any advantage as an innocent purchaser; for tbe following reasons: (a) Being an innocent purchaser must be affrmatively pleaded.: so also must it affirmatively be proved: tbe onus lies on tbe pleader. Young v. Schofield, 132 Mo. 663; Holdsworth v. Shannon, 113 Mo. 525; Conn. Mut. Ins. Co. v. Smith, 117 Mo. 293; 22 Ency. PI. & Pr. 734; 23 Am. & Eng. Ency. Law (2 Ed.), 522. • (b) There is not only an entire lack of evidence to sustain such a contention on the part of the plaintiff, but the evidence demonstrates that when plaintiff purchased he had- both actual and constructive notice of the existence of this deed of trust and knew that all his predecessors in title had recognized it as a prior, existing and superior encumbrance, (c) The burden being on plaintiff, and the matter at issue being peculiarly within. Ms knowledge, and lie failing to testify in relation tlireto, a presumption is created that his testimony if introduced would have been adverse to his contention. 10 R. C. L. 887; Note: Ann. Cas. 1914A, 919; Taylor v. Murphy, 24 Mo. App. 425. (d) As plaintiff claims under the Cunningham deed reciting this deed of trust, and over his own signature had satisfied two deeds of trust reciting that the land was subject to this incumbrance, he is estopped from posing as an innocent purchaser. 16 Cyc. 685; 10 R. C. L. 681; 18 C. J. 264; Steele, v. Culver, 158 Mo. 136. (e) Having deducted the amount of this deed of trust from the purchase price, plaintiff cannot assert its invalidity, much less be an innocent purchaser as against it. (f) If these deeds of trust were simultaneous, the doctrine of innocent purchaser does not apply. Linville v. Savage,. 58 Mo. 248; 1 Jones on Mortgages (5 Ed.), secs. 606, 608. Even where several notes are secured by a single mortgage, one who takes an asignment of part of the notes should inquire of the maker and of the payee whether the others have been sold with a preferred lien upon the security. 1 Jones on Mortgages. (5 Ed.), sec. 606. (2) It may be admitted that under our law where a single mortgage is given to secure several obligations maturing at different times, other things being equal, these obligations take priority according to maturity. This, however, is the rule of last resort. If from all the evidence, it. appears that the parties intended to give one mortgage, priority over the other, then such intention will be absolutely controlling. 27 Cyc. 1167, 1171, 1196; 1 Jones on Mortgages (5 Ed.), secs. 606, 607, 608; 20 Am. & Eng. Eney. Law (2 Ed.), 1048, 1049, 1050; Ellis v. Lamme, 42 Mo. 153; Linville v. Savage, 58 Mo. 248; Loewan v. Forsee, 137 Mo. 40; Brown v. Barber, 244 Mo. 150. (3) It may also be admitted that in Isett v. Brewster, 17 Iowa, 503, the rule of prior maturity was applied where the obligations were secured by separate simultaneous mortgages. However, it has also been held that a foreclosure of one of two simultaneous mortgages is not effectual to settle the relative rights of the purchaser at the foreclosure and the holder of the other mortgage. A.suit in equity is necessary for that purpose. Yan Aken v. Gleason, 34 Mich. 477. (4) In determining priority of execution, fractions of a day will be considered. Sanely v. Crapenhoft, 95 N. W. 352. Where several mortgages are executed and recorded at the same time, and it can be ascertained that one was intended to have priority over the others, then for the purpose of carrying such intention into effect the law will presume that the mortgage which was intended to be preferred was first delivered. ; Jones v. Phelps, 2 Barb. Oh. 449; Butler v. Mazeppa Bank* 94 Wis. 351; Trompcynski v. Struck, 105 Wis. 440. (5) It is the duty of the recorder to record instruments “in the order of time when the same shall have been delivered for record.” R. S. 1909, sec. 10388. It therefore devolved upon the recorder to determine which of these deeds of trust was first delivered for record and to record it first. This he did at the time in favor of the principal deed of trust, one thousand dollars, recording it in Book 16 at page .332, deferring the commission deed of trust to page 337 of the same book. Priority of rec-' ord 'may be shown by the numbering and, for the same reason, by the paging of the record. Conn. Mut. L. v. King, 75 N. W. 376; Lamkin v. Bank, 23 S. E. 390; 1 Jones on Mortgages (5 Ed.), sec. 534. “When a grant- or conveys the same land to two different persons on the same day, the deed which is first recorded carries the title. ” Smith v. Johnson, 107 Mo. 497; 19 R. C. L. 408 ; 27 Cyc. 1194. (6) A controlling agreement or equity may appear upon the face of the instruments whereby one will be given priority over the other. Ellis v. Lamme, 42 Mo. 143; 27 Cyc. 1226; 20 Am. &'Eng.; Ency. Law (2 Ed.), 1049; 17 Am. & Eng. Enoy Law (2 Ed.), 9; 13 C. J. 528. (a) In determining such intent, the court may consider the fact that two deeds of trust were given, and this, is presumed to. have been done for a purpose,, and to have some effect. 13' C., J. 527, note 46. (b) The court will also consider the situation, surroundings and business of the parties, and the general nature and purpose of the transaction involved. 17 Am. & Eng. Ency. Law (2 Ed.), 21; 13 C. J. 540, 542. . (c) The court will consider also the construction placed upon the transaction by the parties themselves and their privies. 13 C. J. 546; 17 Am. & Eng. Ency. Law (2 Ed.), 23. (7) Aside from that which appears upon theoface of the instruments, a controlling agreement for priority between the original or subsequent] parties may be shown: and such agreement may rest in and be proved by parol. 1 Jones on Mortgages (9 Ed.), sec. 608; 8 Ency. Ev. 685; Linville v. Savage, 58 Mo. 248; Loewan v. Eorsee, 137 Mo. 40; Minor v. Sheehan, 15 N. W. 687. (8) The Omaha Loan and Trust Company, while owning both these deeds of trust, sold the one now in question as, and represented it to be, a first encumbrance. This constituted a controlling agreement for priority.. 20 Am. & Eng. Ency. Law (2 Ed.), 1040; 27 Cyc. 1228; 19 R. C. L. 411; Note: 48 L. R. A. (N. S.) 761; Lane v. Niekerson, 17 Hun, 148. (9) Whatever may have been the original status of these deeds of trust, if Mautz and DeForest deducted the amount of this mortgage from the purchase price of the land and accepted a deed in which this encumbrance was excepted from the covenants, then they, and plaintiff claiming under them, are estopped from deny-, ing its validity or superiority. U. S. Bond Co. v. Keahy, 155 Pac. 537; Jones v. Perkins, 144 Pac. 183; Fuller v. Devoid, 144 Mo. App. 96; 1 Jones on Mortgages (5 Ed.), 696; Scheppelman v. Feurth, 87 Mo. 353. (10) The recitals in the Cunningham deed and the several deeds of trust given to Rodgers are prima-facie evidence of the facts herein stated against the parties thereto as well as their privies. This is based upon the general rule of evidence as to admissions and applies even where an estoppel is not created. Allen v. Kennedy, 91 Mo. 324; 1 R. C. L. 484 ; 4 Ency. Ev. 187; 18 C. J. 264, 265 and note 96. (11) The conversation with and representations to Miss Leverich at the time she purchased could not only be considered in aid of construction, but .also this in and of itself constituted a controlling agreement as to priority. 20 Am. & Eng. Ency. Law (2 Ed.), 1040; 27 Cyc. 1228; 19 R. C. L. 411; Note: 48 L. R. A. (N. S.) 761; Lane v. Nickerson, 17 ITun, 148. This may be proved by parol. 1 Jones on Mortgages (5 Ed.), sec. 608; 8 Ency. Ev. 685; Linville v. Savage, 58 Mo. 248; Loewan v. Eorsee, 137 Mo. 29, 40. It was therefore error to reject this testimony.

      Lamar, Lamar é Lamar for respondent.
    (1) Plaintiff’s petition says that he is the absolute owner of the land described in the petition. Defendant’s answer is, first, a denial that plaintiff is such owner, and then says “said deed of trust (defendant’s deed of trust) is a superior lien, incumbrance and claim against said real estate and takes priority over all the right, title and claim of plaintiff in, to or against said real property.” The remainder of said answer simply describes this deed of trust and asks foreclosure. As we understand it, this simply raises a question of law arising on the face of the record as to which deed of trust under the law is a prior lien. The.defendant does not by her answer set forth any facts which would authorize a court of equity to postpone the lien of the deed of trust under which plaintiff claims, which matured first, to the one held by defendant. Even if there had been no foreclosure and' the action were between defendant and the original holder of the note first maturing, in order to authorize a court of equity to postpone the lien of the deed of trust securing the first note, to the one securing the note maturing last, the facts authorizing such postponement must be pleaded and proven. 27 Cyc. 15Q9'-d and note 96; Boone on Code Pleadings, 283; 20 Am. and Eng. Enc. Law (2 Ed.), 1049; Schanework v. Hoberecht, 117 Mo. 31; State ex rel. v. Barnett, 245 Mo. 116; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 297; Lappin v. Nichols, 263 Mo. 290; Vogeler v. Punch, 205 Mo. 577; Pier v. Heinrichoffen, 52 Mo. 336-; Sawyer.v. Bradshaw, 125 111. 440; Abbott v. Peck, 35 Minn. 499; Austin v. Hatch, 159 Mass. 198. (a) The answer of defendant would not support a judgment, even if - the court had granted it, postponing the deed of trust, under which plaintiff claims, to the one held by defendant. A judgment or decree cannot be broader than the pleadings, and if it is, it is error on the face of the record. Roden v. Helbren, 192 Mo. 74; McNair v. Biddle, 8 Mo. 268; Irwin v. Childs, 28 Mo. 576; Bond v. Powell, 180 Mo. 421. (2) We understand that appellant admits as a matter of law, on the face of the record, that where two deeds of trust are given simultaneously and recorded at the same time, the one securing the note which matures first is a prior lien, and that the same rule applies to a deed of trust securing two or more notes maturing at different dates. However, we present the following additional authorities thereon: (a) Where two deeds of trust, or mortgages, are executed simultaneously%y the same grantor to secure the same grantee, it has the same legal effect as one deed of trust securing notes maturing at different dates. 1 Jones on Mortgages' (5 Ed.), sec. 607, note 7; Isett v. Brewster, 17 Iowa, 503; Thayer v. Campbell, 9 Mo. 281; Schultz v. Plankington Bank, 39 N. E. (111.) 346; Alden v. White, 66 N. E. (Ind.) 599. And it is held that parol evidence is not admissible to contradict or change the legal effect of such instrument. Isett v. Brewster, 17 Iowa, 503; Case Mfg. Co. v. Matthews, 174 S. W. 200. (b) Where a mortgage or deed of trust secures moie than one note, or where different mortgages are gmn at the same time to the same parties and recorded at the same time, securing debts maturing at different dates, the mortgage or deed of trust which secures the note first maturing is a prior lien. 27 Cyc. 1167, and note 10; 1 Jones on Mortgages, secs. 606, 607; 20 Am. & Eng. Enc. Law (2 Ed.), 1048-5; Thompson v. Field, 38 Mo. 375; Huck v. Erskine, 45 Mo. 384; Mitchell v. LaDrew, 36 Mo. 526; In re Eergnson Est., 124 Mo. 582; Buford v. Smith, 7 Mo. 489; Campbell v. Thayer, 9 Mo. 283; Freeman v. Elliott, 48 Mo. 74; Peoples Savings Bank v. Finney, 63 Ind. 460; Isett v. Brewster, 17 Iowa, 503; Terry v. Warden,'77 N. W. (Minn.) 777; Schultz v. Bank, 30 N. E. (111.) 347; Horn v. Bennett, 34 N. E. (Ind.) 9561; Owing’s v. McKenzie, 133 Mo. 333; Campbell Co. v. Boeder, 44 Mo. App. 328; Rowe v. Scherz, 69 Mo. App. 91; Huffard v. Gottberg, 54 Mo. 271; 2 Jones on Mortgages (5 Ed.), secs. 1699, 1459; Leavitt v. Reynolds; 79 Iowa, 348, 44 N. W. 567. (c) And a foreclosure to pay the note first maturing carries the whole title, which relates back to the date of the execution of the mortgage or deed of trust. 2 Jones on Mortgages (5 Ed.), secs. 1459, 1577 and 1939; 27 Cyc. 1503, sec. 2, 1791E, 1835; Plum v. Studebaker Mfg. Co., 89 Mo. 163; Adams v. Carpenter, 187 Mo. 613. (3) Even if defendant had plead facts authorizing a court of equity to postpone the mortgage under which plaintiff holds and decree defendant’s deed of trust a prior lien, plaintiff would not be bound by an agreement between the Omaha Loan & Trust Company and the unknown holder of the note maturing six years later. Smith v. Boyd, 162 Mo. 153. The general warranty deed from McNinch and wife, the purchasers at the foreclosure sale, to Mautz and DeForest only “excepts” from the covenants of warranty a deed of trust to the Omaha Loan & Trust Company. It is elementary that such a recital only operates to except this from the covenants of warranty, and does not bind or estop plaintiff from contesting the lien or validity of any such deed of trust or mortgage. 1 Jones on Mortgages (5 Ed.), 746; 10 R. C. L. 685, secs. 15 and 16; Brooks v. Owen, 112 Mo. 260; Calkins v. Coply, 13 N. W. 904; Wantell v. Bane, 79 N: W. 91; Bigelow on Estoppel, 272-289. (a) Of course, the mortgage given to the Omaha Loan & Trust Company securing the note held by defendant was of record and was a constructive notice of its contents, but' the notice of such mortgage was notice only of such rights of the parties as were disclosed by an inspection of the record itself and nothing more. 27 Cyc. 1361-b, note 30; Powers v. Laffler, 73 Iowa, 283, 34 N. W. 659; Bennett v. Keehn, 67 Wis. 154, 30 N. W. 112; Calkins v. Coply, 29 Minn. 471, 13 N. W. 904; Robinson Bank v. Miller, 153 111. 244, 38 N. E. -1078. (b) The two deeds of trust being of record when defendant purchased the note in 1901, she took such note with constructive notice of their legal priorities and cannot now say to the contrary. Smith v. Boyd, 162 Mo. 153. (4) The holder under a foreclosure of a deed of trust prior in law will not be affected by secret equities of third parties unless it is shown that he took Avith actual notice of such equities. Jones on Mortgages, sec. 532; Beatie v. Butler, 21 Mo. 313; Powers v. Kuckhoff, 41 Mo. 431; Patton v. Eberhart, 52 Iowa, 67, 2 N. W. 954. (5) The burden is on the defendant to allege and prove such actual notice. She was attacking the legal title and was asking affirmative relief. 27 Cyc. 1509; Hendricks v. Calloway, 211 Mo. 561; Cornett v. Berkleman, 61 Mo. 118; McMurray v.' McMurray, 258 Mo. 417; Quinn v. Mc-Callum, 178 Mo. App. 241; Garrett v. Wiltse, 252 Mo. Mo. 70-5. The purchaser at a foreclosure sale may rely on the record and is not bound by latent equities. 1 Jones on Mortgages (2 Ed.), secs. 514-516; Garrett v. Wiltse, 252 Mo. 705; Sfuith v. Boyd, 162 Mo. 153.
   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 oAvners 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 3, 1904, and one other note for $1000 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 $1000; 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 DeForrest and Frank Mautz. The grantor covenants in this deed ‘ ‘ against all claims, etc.,, except a deed of trust to the Omaha Loan & Trust Co. and to Gr. P. Eodgers and judgments in Houseden suits.” In December, 1909, Frank Mautz and wife conveyed the land by quitclaim deed to Byron DeForrest. This deed contains no reference to any incumbrance. Some ten or twelve days thereafter Byron DeForrest 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, Eevised Statutes 1.909, the administrator of the estate of Eliza J. Leverich petitioned the court to set aside the judgment in which it had been.found that the plaintiff was the owner in fee of the land in question for reasons, among* others therein alleged, that Eliza J. Leverich was the owner of the note for $1000 and the deed of trust on said land to secure the payment of same given April 25, 1901, by Edwin McNinch and wife to the trustee of the Omaha Loan & Trust Company; that said Eliza J. Leverich died testate in New York in February, 1907; that no service in the suit brought by John D. Stewart, the plaintiff herein, in any wise affecting her interest in said land was ever had upon her or anyone representing her other than the attempted service by publication upon unknown parties, and'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 $1000 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 one-thousand-dollar 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.

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.

3. The Court erred in rejecting testimony to prove that when the deed of trust claimed by defendant was sold to Eliza J. Leverich it was represented to her to be a first mortgage.

,.

I. The rules of procedure in suits to quiet title are the same as in other civil actions. This is clearly contemplated by Section 2535, Revised Statutes 1909, and is expressly so provided in Section 2536, Revised Statutes 1909. This being 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. l. c. 160, would be “to destroy the symmetry of the law.” Confirmatory of this conclusion, Lamm, J., said in effect in Wolz v. Venard, 253 Mo. l. c. 86, that “this statute is to be administered in conformito 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 source of confusion and wrong. ’ ’ The ruling Seemingly to the contrary in Noble v. Cates, 230 Mo. l. c. 202, “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 therefore correctly state the law.

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 one-thousand-dpllar 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 administrator and that he should have been limited in his defense to that made by his answer.- As an abstract statement of the rules of procedure this is correct. But the limitation now sought to be imposed is not timely and was waived by the plaintiff in not objecting at the time to the claim of priority thus interposed. During the trial the plaintiff contented himself with technical objections to the introduction of certain evidence, principally documentary, but having no tendency to determine the question of priority between the two deeds of trust. The trial was conducted as though the answer had'set up the equitable defense now objected to by the plaintiff. The case will be reviewed, therefore, upon the theory sanctioned by the parties and recognized by the trial court. [McMurray v. McMurray, 258 Mo. l. c. 416; Honea v. Railroad, 245 Mo. l. c. 645; Williams v. Railroad, 233 Mo. l. c. 675; Brier v. Bank, 225 Mo. l. c. 684; Degonia v. Railroad, 224 Mo. l. c. 588; Riggs v. Railroad, 216 Mo. l. c. 304; Hof v. Transit Co., 213 Mo. l. c. 470; Taylor Brick Co. v. Railroad, 213 Mo. l. c. 726; Earls v. Earls, 182 S. W. 1020.]

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. l. c. 375; Jackson v. Johnson, 248 Mo. 692.] In view of all of which we need not further concern ours'elves 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. sec. 621, p. 725.]

Priority of Trust!

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. l. c. 87; Potter v. Stevens, 40 Mo. 229; Allen v. Goodrich, 111 Mo. App. 61; 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 for which the deeds were given would be rendered ineffectual. This for the reason that a note constitutes the obligation and defines its terms, while a deed of trust is merely collateral and is intended to secure the payment of the note. [Morgan v. Martien, 32 Mo. 438; Owings v. McKenzie, 133 Mo. 323; Frye v. Shepherd, 173 Mo. App. l. c. 209; Westminter College v. Peirsol, 161 Mo. 270.] This conclusion as to priority is based upon what is termed the earlier-maturing rule, recognized as controling in this State as contradistinguished from the prorata and prior-assignment rules which obtain in some other jurisdictions. The earlier-maturing rule was first definitely promulgated in this State in Mitchell v. Ladew, 36 Mo. 526, 88 Am. Dec. 156, to the effect that notes secured by the same deed of trust have priority in the order in which they fall due. Subsequent ruling,s under which the minor facts are different, conform to this rule. To illustrate: In Thompson v. Field, 38 Mo. 320, several notes, in the hands 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 liad become dne 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, be 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 heen 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 liave priority over the other.

The court, in ruling upon these facts, at páge 573, said: “Independent of any legal and binding agreement, where a mortgage is executed to secure two 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 identical. [Citing-cases.] Whether the notes thus secured are retained by the payee and mortgagee, or are assigned to different parties, the right of priority of payment still attaches to them; nor does the time of or order in which they are assigned, affect snch 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, 30 N. E. (Ill.) 346; Allen v. White, 60 N. E. (Ind.) 599; 1 Jones, Mortgages (5 Ed.), sec. 607.]

Agreement.

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 taat securing the payment of the one-thousand-dollar note, the plaintiff cannot be held fio 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 nor 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; Powers v. Kueckhoff, 41 Mo. l. c. 431; Beatie v. Butler, 21 Mo. 313.] The agreement referred to seems to have been sedulously withheld from the knowledge of the public until March, 1913, or three years after the foreclosure sale, when its first pronouncement is made' in the petition for review and the answer filed by the administrator of Eliza J. Leverich. At the time, therefore, of the foreclosure sale and the purchase of the land by Cunningham, no one other than the parties to the agreement having had any means of knowing that any other than the original payee in all of the notes, to-wit, the Omaha Loan & Trust Company, was the owner of same, and the burden being upon the defendants to establish such notice (Hendricks v. Calloway, 211 Mo. l. c. 561; McMurray v. McMurray, 258 Mo. l. c. 417), which they have failed to do, no probative force, as affecting plaintiff’s rights, is to be given the testimony in regard to said agreement (Potts v. Smith, 178 S. W. 881).

IV. The excepting of the deed of trust securing the one-thousand-dollar 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. l. c. 260 and cases; Wood v. Broadley, 76 Mo. 23; Livingstone v. Murphy, 72 N. E. (Mass.) 1012; Weed Sewing Mach. Co. v. Emerson, 115 Mass. 554; Stough v. Badger Lbr. Co., 70 Kan. 713; Gerdine v. Menage, 41 Minn. 417; Calkins v. Copley, 29 Minn. 471; Boyer v. Price, 45 Wash. 667; Bennett v. Keehn, 67 Wis. 154.]

The exception in the covenants of warranty to'the deeds- of trust made by Cunningham 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 one-thousand-dollar note. Furthermore, the plaintiff was not a party to these deeds, does not claim under them and cannot be bound by ¿heir 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 (5 Ed.), sec. 746, and cases.]

The deed of trust given to secure the payment of the one-thousand-dollar 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. Lafler, 73 Iowa, 283; Robinson Bank v. Miller, 153 Ill. 244.]

The two deeds of trust were of recoi'd when Eliza J. Leverich is alleged to have purchased the one-thousand-dollar note and she took the same with constructive notice of the priority of the deed securing the notes first maturing. [Smith v. Boyd, 162 Mo. 146; Patton v. Eberhart, 52 Iowa, 67.]

In Patton v. Eberhart, supra, the doctrine is explicitly announced that a mortgagee of real estate is a purchaser within,the meaning of the recording laws, and his mortgage, when taken in good faith, is subject only to such prior liens as are of record at the time of the execution of the mortgage. The doctrine thus announced, so far as it relates to the character of the mortgagee’s or trustee’s, interest in the Iqnd, is too broadly stated to accord with our rulings. Here a mortgage 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; Standard Leather Co. v. Mutual Ins. Co., 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. l. c. 332; Benton Land Co. v. Zeitler, 182 Mo. 251.] 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- taken in good faith it is subject only to such prior equities as are of record at the time, applies with full force in the instant case. There were no prior equities of record, nor did either the purchaser at the foreclosure sale, nor any subsequent owner of the land in the chain of title through which the plaintiff holds, have any knowledge of such equities as were sought to be established at the trial. This conclusion, however, is but a reiteration of that before reached when reviewing the facts from another point of vantage.

The plaintiff was not required to make the parties to the deed of trust to secure the one-thousand-dollar note defendants. [Thayer v. Campbell, 9 Mo. 280.]

Defendants established no equities authorizing a decree in their favor.' There were no errors authorizing a reversal, and the judgment of the trial court is therefore affirmed.

All concur.