Hospes v. Almstedt , 83 Mo. 473 ( 1884 )

Henry, C. J.

This cause is here on appeal from the St. Louis court of appeals which reversed the judgment of the circuit court. The case is reported in 13 Mo. App. Rep. 270, in which a full and fair statement of the case-will be found. The principal contention is on the question of merger. The court of appeals held, and we think correctly, that the lien of a mortgage is not merged in the title acquired by the mortgagee, at a sale of the mortgaged premises under a junior mortgage, or judgment, when it is his intention that there shall be no-merger ; and in the absence of evidence Co the contrary, Ms intention will be presumed to accord with his interests. In addition to the authorities cited by the court of appeals in support of the proposition, we add the following: Woodward v. Davis, 53 Iowa 694; Simonton v. Gray, 34 Mo. 50; Gibson v. Crehore, 3 Pick. 475; Eaton v. Simonds, 14 Pick. 98 ; James v. Morey, 2 Cow. 246 N. J. Ins. Co. v. Meeker, 40 N. J. Law 18. Neither courts of law nor courts of equity favor mergers. Id. In Wead v. Gray, 78 Mo. 59, it was held on the facts of' that case, that there was a merger, but it was clearly in the interest of the holder of the notes, and there was no-evidence that she desired, or intended to keep the notes alive.

The court of appeals reversed the judgment with directions to the circuit court to “take such further proceeding as to the court may seem proper, touching the ownership and disposition of the note secured by the deed of trust,” and plaintiff, appellant here, and, also, in the court of appeals, asked a modification of the judgment so as to allow him an opportunity to adduce evidence of an intention on the part of the holders of said, notej that it should be held as paid, merged or cancelled. This was an issue in the cause on which testimony was introduced and Jecko, for the defence, testified that he and his partner, Hospes, wanted the note in order to control the deed of trust and property, and it was not their intention to pay the note, and that they never did, but-purchased it to protect their title to the property. Appellant’s ground for his motion to modify the judgment was, that his view of the law was, that whether a merger-had taken place or not was a matter of law, unless it was the intention, or interest of the party that it should not take place, and that the burden was upon respondent to-prove such interest, or intention. Such a plea cannot be entertained in an appellate court, which does not sit to correct the errors into which a party, or his counsel may have fallen, but only those committed by the court*. If appellate courts would re-open issues once tried,. merely because one of the parties was ignorant of his right or duty to adduce evidence at his command on the identical issue between the parties, there would be no end to litigation. The judgment of the court of appeals is affirmed.