*1 also O’Brien (3). See 218, 1. e. W. 66, 246 S. Dennis, 296 Mo. 470. see. 429; 68 J.C. 222, 315 Mass. (2d) E. Collins, 53 N. will was prepared who Durst urge Mr. Appellants ex have been should that his evidence competent witness ' Mr. Durst agree. evidence we cannot this cluded. To with reference and also undue influence question of on the admissible cir to show admissible His evidence capacity. mental of the execution time- surrounding testator at the cumstances sec. the will. See as beneficiaries defendants also assert
Appellants by of See. virtue- witnesses incompetent were the will under a con- party to where one provides that 1939. The section A., R. .S. testify with reference- incompetent to party is dead, the other tract .a. tá legatee party, A is not the deceased. made with contract to the and. of testify questions of undue influence a contract Erisman, sec. Paris v. See C. J. capacity. mental (1). 487, L e.489 - remanded, trial is reversed and the cause -court T)hejudgment Barrett, GO., Bohling and concur. for retrial. foregoing opinion Westhues, C.,..is
PER CURIAM: The judges All of the court. concur. adopted as the D. Barr, Appellant, Nellie E. Kan William Corporation, Company, sas Insurance Pawnee Realty Investment, Company, a Corporation, Company, (2d) Corporation, Respondents. 40676. 219 S. W. No. Two, April Division *2 appel- Weber Prince,
C. W. Wm Dennis Bush and F. Bichard lant.
Harry L. respondents, Jacobs and Robert J. Coleman for William Company, D. Pawnee Investment Realty Company. Arthur N. Adams Adams, and Arthur N. Jr., respondent, Kan-
sas Title Insurance Company. for -the sale and [305] *4 BOHLING, purchase C. Interpleader, of real estate for $13,750. outgrowth Nellie E. Barr, contract of a purchaser, instituted an action in $20,000 conversion for actual
1193 against $20,000 punitive damages owner, William D. and tbe contracting seller, City Title Insurance Com- .tbe Kansas pany, corporation, agent, Company, tbe escrow Pawnee Investment (cid:127) corporation, by’ Snyder, record bolder and title controlled Snyder Realty corporation, by Snyder. Company, a also' controlled City designated Tbe Kansas Title Insurance hereinafter- joined Company, with to in-tort, Title its answer Mrs. Barr’s action way interpleader by a bill of of cross-claim or cross-bill. Tbe court this, discharged plea Company. sustained Barr tbe appeals, contending agent may that tbe escrow not maintain a bill-
It
in behalf of
Barr
an
agent
is stated
that
escrow
is a trustee
for both
parties
and is
'bound
tbe
conditions of tbe deposit
j1
equitable interpleader may
successfully
tbat an
interposed
pursue
remedy
because she
an
has elected
tbe
-of
action at law in
damages
rights
conversion for
in
in
escrow;2
lieu
her
tbe
interplea
defendants
tbe
do not claim
thing;3
tbe same
agent
tbe
an independent personal liability
escrow
incurred
;4
to her
agent
absolutely
escrow
disinterested;5
a'wrongd
tbe
was not
oer;6
trespasser
liable in
tort.7 This calls
some detail of tbe
’
n nn
facts.
A
six-apartment building
City,
certain
Missouri,
Kansas
Bros,
by Snyder
listed
for sale with Triplett
real
agency.
estate-
Colorado,
Barr
Denver,
Mrs. Nellie E.
was in tbe market for Kan-
City
parties
real
Triplett’s
sas
estate. Tbe
met in
office.'
Mrs.'
was informed and understood" that
controlled and bad-full
authority
property.
they
sell
After some negotiating;
agreed
Davis,
411,
883, 888; Byrd
1 Morris v.
334 Mo.
S.
66
2d
v.
Webb
Bk.,
277,
32[2];
1203,
8;
245 Mo.
signature of “M. exe- would be deed secretary that her Snyder’s and thereafter wanted testified she Company. She by Investment cuted the Pawnee Investment from Pawnee property, deed to the the the anybody. as 21, 1945, February between dated The contract “buyer,” far as Barr, so as
“seller,” R. and Mrs. C. [Nellie E.] $13,750 as follows: of said here, payment the material called for Triplett deposited with cash, acknowledged and receipt being $500 $9,000 subject a delivery deed, to Bros.; $3,000 payable on estate; real the note, a first deed of trust on secured 4-3/2% by a second $1,250 buyer, secured subject also a note of the to 5% delivery until the rentals the The was to receive deed trust. seller respecting the de- provisions The contract contained of the deed. examination, cor- Bros., its livery Triplett to of an abstract title could thirty days et The seller any cetera. rection defects within Bros, only persons the Triplett a were policy. furnish title insurance from contract- aside the charged with under the contract duties ing parties. agreed “It further provided:
The also is explicitly contract buyer equipment belonging to the receive all furniture and the is to seller.” Snyder tele- rented furnished. apartments
Two had been the Triplett’s office know if phoned Triplett to before Mrs. Barr left to accept apartments, would furniture in- one of the $250 she for the unfurnished, stating apartment apolo- a had the friend rented gized having for overlooked this. F. Triplett, agent,
James the sales testified on behalf Mrs. Barr apart- Beckett to his officeto rent effect that Mrs. came unfurnished; ment that witness he under- informed Beckett stood apartment had been rented; she had him tele- Snyder; him Mrs. phone told Beckett have could apartment; and in the said that “he same conversation had sold the furniture”; gave receipt for that witness Mrs. Beckett $45 rent Snyder’s apartment March, 1945, on the for direction, the month at days gave and that Mrs. him Beckett about three later for $100 putting possession. receipt February her in rent dated $45 is days two later than the contract of sale.
The bill for signed “Snyder sale furniture, Realty Com- February pany” 28, 1945, dated and recites a consideration Triplett of $450. prior the furniture had been sold February 28, testifying they usually papers do not execute day or two. *6 Triplett that Triplett; Mrs. Beckett Mrs. Barr testified she sent selling furniture calling Snyder kept about her informed Snyder; with transaction; that she talked acting about the peculiarly agreeable, were not and if this Synder $500 wanted an additional note, call $1,250 on the apply it to sell the furniture asked told later and he Snyder about a week sale; that also saw off the she or-let that furniture” “just hour to sell give her he would her one losing approximately he was apartment it him sell and rent not office; Triplett did Triplett’s day; a that she went to $1.90 the whole his of Snyder’s and wanted “to wash” hands like actions money with the they papers and matter, and see if could not leave the closing. Company Title for Snyder for Mrs. Barr and agreeable it was
Triplett testified So, closing of the transaction. Company to take over the the Title Snyder up transaction February 28, 1945, Barr and took the on Mrs. contract, Company, gave him the Frank D. McMullen of the Title with furniture, and told controversy respecting the explained to him the and taken him, according Barr, “we will have that settled to Mrs. '” (cid:127) way. care of in some $9,000 application made an for a Company The Pawnee Investment prior February 21,1945, compliance and in therewith executed loan apartment building, sometime note, mortgage secured a on the its March, $3,000 Barr Company The received from Mrs. cash Title 1, 1945; March a deed gave receipt balance and its therefor dated Snyder, President,; D. Company, W. from “Pawnee Investment Barr, 2, 1945, March with ack-' Bentley, Secretary” to Mrs. dated trust, and deed of nowledgment date; $1,250 Barr’s note of even acknowledgment 2, 1945, showing dated March with the deed trust Snyder payable Barr on March and a check from to Mrs. April 2, dated for to cover of the furniture. This $450 the sale .check carries Mrs. Barr’s endorsement in full settlement of' the contract; Company she instructed the Title to hold the cheek and but put it"in escrow. Company Policy Title In- was to issue its “Owner’s York Life Insurance' premises. surance” on the The New $6,000 by mortgage property on and-a held note secured mortgage $6,000 mortgage chattel on furniture. A release However, was filed of record March the release of the mortgage, delayed, being furniture from the chattel was it not released May 31, 1945, days filing plaintiff’s’ petition until five after the ’ May 26, delivery sale, accept wanted to close the contract controversy open subsequent the deed and leave the furniture adjustment. April 12, 1945, attorney, In a letter dated her Mr. claims,
Field, $1,000, and, additional valued furniture with some tbe at $1,840 Snyder. against total made demand but insisted willing that the transaction closed relating controversies, including that any closing dispose all *7 the to furniture. letter, dated the deal. A to close The Title endeavored and, after 2, prepared April 1945, embodying Mrs. Barr’s ideas Snyder refused to signed approval. for it, submitted to she 1945, by of approve. April 6, preparation the This followed transaction, n embodying Snyder’s closing but a letter ideas for the refused to Section approve 18 of the Civil Code it. of Missouri' (Laws 1943, 361; A., 847.18), here, p. Mo. R. S. material reads: § against joined having plaintiff may be as “Persons claims the n required interplead defendants and to when their claims are such liability. plaintiff may exposed multiple the is or or to double is ground objection joinder It for to of the the claims the depend several claimants or the on which do not titles their claims origin have a common or are not but are adverse to and identical independent another, plaintiff of one or that he the avers is any not liable in or all of A part whole in to or the claimants. liability may exposed interpleader defendant to similar obtain such way by of cross-claim or counterclaim. . . .”
Section
22(1)
18 is taken from Rule
Rules for
of the Federal
Civil
28
p. 522, following
'Procedure.
A.
It
See U. S. C.
723e.
extends
§
scope
the
of
of interpleader
bills
and bills
the nature of
bill
McConkey (Mo.
of
John A. Moore &
App.),
Co. v.
512;
203
Surety
Baker,
S. W. 2d
Standard
&
v.
105 F.
Cas. Co.
578; Carr,
1
Procedure, 162,
2d
2
67;
Edmunds,
Missouri Civil
§
Federal
(1938),
Rules of Civil
seq.;
222;
Procedure
913 et
7 Mo. L. R.
L. R.
equitable
5 Mo.
10. The
interplea
officeof the
protect
n'ot to
is
party against
a:
liability,
against
double
but
double vexation in
respect
liability.
record,
one
As we read the instant
it is not
necessary
develop
enlargement
equitable
interplea by
the
of the
18.§
The filing
the interplea
procedure
under our former
invoked
jurisdiction
the
equity
propriety
action,
to determine the
.and if not properly
facts,
plea
fail,
instituted under the
the
would
as. shown in cases cited Mrs.
W. A.
Barr.
Ross Cons. Co. v.
Chiles, 344
1084,
524,
528;
130 W. 2d
S.
&
Hartsook
Home
v. Chrissman,
ii§? C. merely and colorable. 48 feigned substantial dispute is real been' converse also bas n 52. The 42, 461, n 33 C. J. 94, S. § or' person frivolous claim the third the asserted Where held: J. S. colorable, interplea § be denied. invalid, should App. 128, 132 O'Connor, 153 Mo. c, Rys. Co. v. n United Super. Co.; 57 Pa. Wyoming Valley Beef 262;W. v. S. Cross Chamberlin, 271 U. S. way analogy, By see Harrison á stating: “And . . 70 L. Ed. 46 S. Ct. bad and without' merely if on face made in faith claim is colorable its Comingor, 184 U. legal justification’ ”; Louisville Trs. Co. 18, 26, L. Ed. S. Ct. Co., App. Novinger In Bank St. Louis Union Trs. share' a bondholder sued his distributive 189 S. W. n had receivéd- proceeding, charging of a that the trustee foreclosure disputed actually he Other than received. more bondholders filed an validity plaintiff’s all bonds. The trustee answer- but one of petition charged receipt interpleader, alleging and bill of of the- *8 a feign interplea. holding a. In dispute additional sum to to defeat an rightful dispute equity its mere colorable ineffective to oust among jurisdiction, court, the other said: things, “. . . If the are such prayer circumstances that the the bill granted a interpleader except dispute should be as on account a governing determining fact right and such should whether granted, dispute then the court should ascertain real whethér such ascertaining feigned. Otherwise, or the court no means of would have equity powers whether its should or not. We are of the be exercised . that under like . the court present, circumstances the investigate enough should the facts far claim to ascertain whether such good was made or its not, in faith or had a foundation for reasonable ’’ basis. the above authorities. Mrs. Barr’s The Title Company was entitled to thé interplea presentation proceeds upon the' under theory the written February contract of 21, 1945, covered rights the all parties. might duties of Such have been the situation had Bros, Triplett agent. remained escrow The controversy respecting the furniture had become so Triplétt intense that Bros., agent' the escrow named in contract, said wanted to “wash” their hands the escrow Company any before the Title had information of the situation. The' Uompany accepted Title the escrow week after the execution of the written understanding contract'with the existing the then controversy parties respecting between the the furniture would be settled and. way. Byrd taken of in care some v. Webb Bk., 245 277, Mo. 286, 31, 32(2); 149 S. W. v. Foulkes Sengstacken, 83 118, Ore. 158 952, P. 311, Malley 163 P. 315[16-18]; Quinn, 132 Minn. 156 N. W. It has 264[2], been never settled but continues it existed when the papers placed were with the Title Company; It rights Company Title to determine the of Mrs. for the was peril it have the would acted at its Snyder. In circumstances Bk. other. Nat. the consent of the Citizens party without with either 625; L. Morris 212, 225, 57 33 S. 229 U. S. Ed. Ct. Davisson, Snyder’s forbidding, W. 2d 66 S. Davis, 334 wrongfully, completion the in rightfully or. the whether .escrow ground of Mrs'. Barr was sufficient for the conformity the desires .with A. Lodge Smith v. Grand Company to invoke O. Title 662, 669; App. 181, 201, S. W. John Moore A. W., U. McConkey (Mo. 2d J. S. App.), S. W. C. & Co. v. may rights against have 17. Mrs. Barr § § disregard they authorize her to do not the conditions but ¡escrow accepted by Company. the Title The under which the: dispute respecting furni party not a to the the Company was Title controversy adjustment an were directed to efforts ture. Its : It it ihe transa'ction. was unsuccessful in this and might close that it by it in court all of the escrow received as a stakeholder deposited has Barr, party. other Bros., Mrs. or interested Triplett from App.), ; 235 S. W. (Tex. Civ. v. Simon Williams 262[12] Fifty-Seventh N. Y. Corp., St. 6-8 Stinson v. [4], equity Snyder litigate is that Barr and here 127 Misc. controversy involving without in the furniture dispute. Bentley “pretense that M. Barr’s brief mentions building. so, If apartment there is noth- and seller” owner may charge upon which Mrs. Barr the Title ing in record Com- Bentley” any wrong signing “M. contract week pany of knowledge Company’s of its prior the Title existence. “in or preju furtherance convenience to avoid Courts any claim, separate cross-claim, trial of order ... dice *9 claims, cross-claims, issue number of . . any separate or (b); (b). R. 1943, p. 384, A., 847.97 Laws § issues.” § appropriately up took the interplea Rule 3.29. The court first. See our points presented in have said rules the behalf of Mrs. What we appeal. authorities, We have considered her a number this 1-7, supra. of her being.cited authorities, in notes Some view as we questioned principles others, not here suit, law under state - case, controlling. peculiar facts of the instant are think We 18 of regard (quoted to the extent the Civil this is true without Code § enlarge equitable bill supra) allowing the Title judgment maintain its bill of affirmed. interpleader Barrett, CG., and is Westhues and should.be concur. The foregoingopinion C., BohliNG, adopted
PER CURIAM: judges All the of the court. concur.