9 Mo. App. 179 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This was a proceeding in equity against the widow and heirs at law of one Archibald S. Eobards, deceased, and the trustee of a deed of trust executed by Eobards in his lifetime, to secure a note to Grove, the original plaintiff. The general object of the proceeding was to set aside a satisfaction of the deed of trust alleged to have been fraudulently made by the trustee. The bill was dismissed, and on appeal this judgment was reversed. Grove v. Heirs of Robards, 36 Mo. 523. A change of venue was taken from the Hannibal Court of Common Pleas to the Circuit Court of St. Louis County. Meanwhile the plaintiff died, the widow died, the trustee died, the original administrator died, and when the cause came up for trial, on November 21, 1877, the action had abated as to the widow and trustee, and there was a default as to all the other defendants except Johu L. Eobards, one of the sons of Archibald S. Eobards, deceased, who had tiled an amended separate answer in November, 1870.
The original petition on which the case was tried was filed in September, 1864, and alleges, substantially, that Archibald S. Eobards, deceased, together with his wife, executed a deed of trust dated July 21, 1860, to Thompson as trustee, to secure a note of Eobards to Grove of same date, for $1,120, at six months, bearing interest after maturity at ten per cent. The property conveyed bv the .deed was lot 7 in block 47 in Hannibal,
The widow and trustee filed separate answers, verified by affidavit, as the practice then was, in which they say that at the time the trustee executed the deed of release the note described in the deed of trust in question was in fact paid by a note made by Robards to the order of Grove, for $1,250, dated March, 1861, at one hundred and eighty days, and secured by deed of trust executed by Robards to H. H. Wardlaw, trustee of Grove, and accepted by Grove in payment of the first note, and that the trustee satisfied the first deed of trust at the-request of Grove.
The amended separate answer of John- L. Robards, filed in 1870, sets up that the note described above, in the answer of the other defendants, was secured upon the buildings and improvements described in the deed of trust mentioned in plaintiff’s petition, and also on part of lot 1 in block 10 in
Defendant also alleges that Archibald S. Robards died insolvent, and that, at the time of his death, judgments obtained against him iu the Hannibal Court of Common Pleas remained unsatisfied. These judgments are set out; they are eight ‘in number, obtained in 1860 and 1861, and aggregate nearly $7,000. It is alleged that these judgments were' all proved against Robards’ estate in the Probate Court of Hannibal, and were in 1867 assigned to defendant for value; that they are unpaid, and he owns them; that the sale to Grove was fraudulent, and that the deed of release of Thompson was a cloud on title that
All the new matter in these answers was denied by implications.
On hearing, the bill was taken as confessed as to all the defendants except John L. Robards, and, the suit having abated as to the widow and Thompson, the trustee, the court found that the release by Thompson was made without the knowledge or consent of Grove; that no part of the debt secured by the deed of trust mentioned in the deed of release was ever paid to Thompson; that the debt was not paid at the date of foreclosure, and that no right to redeem was vested in John L. Robards. The deed of release of Thompson was annulled, and there was a judgment for plaintiff for costs.
So far as the entry of satisfaction by Thompson goes, it was unquestionably void. It is not even pretended that he had received payment of the note described in the deed of which he is trustee, and the evidence shows that, whether the second note was or was uot taken in satisfaction of the first note, the trustee was never requested by the cestui que trust to execute a deed of release.
Nor does it appear what equity John L. Robards has to have the foreclosure of the first and second deeds of trust set aside. The estate of his father was confessedly insolvent. The only persons interested in that estate seem to have been the creditors, if we except the widow, who is out
It is true that it is not absolutely necessary that a creditor, before he can question in chancery conveyances affecting his debtor’s real estate, should have first fastened a lien upon the property. Merry v. Fremon, 44 Mo. 520. But it
We see no reason for disturbing the decree rendered in this cause, and,
it will be affirmed.