221 Mo. 380 | Mo. | 1909
This is the second appeal in this cause. The first appeal was from a judgment sustaining a demurrer to the bill, and that judgment was reversed by this court. [Lappin v. Crawford, 186 Mo. 462.]
After the. cause was remanded the defendants filed their answer and the plaintiffs their reply, and the cause was tried and a decree rendered in favor of the plaintiffs, canceling the notes described in plaintiffs’ petition and setting aside the deed of trust securing the same. Within due time the defendants took the proper steps to perfect an appeal to this court. The petition is set.forth in full in the report of this case on the former appeal in 186 Mo. 462, and it is therefore unnecessary to reproduce it in full at this time. After the cause was reversed the defendants filed their joint ans“wer, in which they stated that for a long time prior to March 3, 1900', plaintiffs were the owners of the real estate described in their petition, subject, however, to a certain deed of trust payable to one John O’Day, and that on the 3rd day of March, 1900, said O’Day foreclosed said deed of trust and at said sale John O’Day, junior, became the purchaser of said real estate for the sum of one thousand dollars; that sometime after the date of the foréelos
In their reply the defendants denied that they agreed to execute to the defendant, Crawford, the two notes of $500 each, but say that the said notes were executed because said Crawford refused to permit said loan to be made until they were executed and
At the conclusion of all of the evidence, at the request of both parties the court made a special finding of facts, which is in the following words:
“That on or about February 26th, 1896, plaintiff, George Lappin, purchased of J. R. Willyard the following described land situated in Greene county, Missouri, to-wit: The east half of the east half of section 16, and the west half of section 15, all in township 28, range 22, containing 320' acres, subject to a deed of trust executed by said Willyard in favor of John O’Day to secure notes payable to John O’Day, amounting to $7,000, which sum grantee and plaintiff, Georg’e Lappin, assumed and agreed to pay. Said deed to Lappin for consideration of about $9',000, and was recorded March 17, 1900'.
“That on or about March 3, 1900, plaintiff, having defaulted in the payment of the notes and interest thereon, amounting at that time to about $7,420', secured by the deed of trust executed by said Will-yard to John O’Day, the above described land was sold at trustee’s sale and bid in by said John 0'’Day, or for him.
“That prior to said trustee’s sale, and by virtue of the O’Day deed of trust, plaintiffs applied to defendant Crawford for a loan of $7,000, with which to pay off and satisfy said O’Day deed of trust, O’Day having at that time agreed with plaintiffs to thro'w off $420 of the debt.
“That in pursuance of said application, defendant Crawford had Jerome Dickerson examine said land above described with the view of procuring a loan of $7,000 from said Jerome Dickerson for plaintiffs. That said Dickerson, after examining said land, refused to make a loan of $7,000 and agreed to make a loan of $6,000 on said farm.
“I find that at some time near the date of said trustee’s sale on March 3rd, 1900, said O’Day agreed with plaintiffs that he, O ’Day, would throw off $1,420 of his debt against plaintiffs and agreed that they might redeem said land on the payment to him of the sum of $6,000 on or before March 17, 1900. I find that prior to March 17, 1900-. defendant Crawford had knowledge of the fact that John O’Day had agreed with plaintiffs to throw off said $1,420, and permit plaintiffs to redeem said land on the payment to him, O’Day, of the sum of $6,000, on or before March 17, 1900.
“I find that prior to March 17, 1900, defendant Crawford agreed with plaintiffs to procure for them a loan of $6,000 for the sum of $300 commission, which said commission of $300 was -thereafter paid to defendant in full.
“I find that it was agreed upon, or at least understood, by all parties interested in the procurement of said loan that said loan was to be made and the transaction consummated on March 17, 1900; that on said date plaintiffs came to the office of defendant Crawford, in Springfield, Greene county!, Missouri, in the morning of said day; that defendant Crawford
“That at'the time last mentioned plaintiffs signed the first two notes and deeds of trust, to-wit, the note and deed of trust to Sprague and the note and deed of trust to Dickerson, but protested to defendant Crawford against signing the two $500 notes to defendant Crawford, and the deed of trust to secure same, and at the time refused to sign said last mentioned notes and deed of trust, whereupon defendant Crawford notified plaintiffs at the time that if plain
“I find that plaintiffs had no knowledge that defendant Crawford would require them to execute to him said deed of trust and said two $500 notes, as a condition to securing by him said $6,000 loan or for redeeming said land from O’Day, prior to the time said deed of trust and said notes were presented by defendant Crawford to plaintiffs for their execution on said March 17, 1900.
“I further find that plaintiffs, at the last mentioned time, and after defendant Crawford told them that the loan would "not be made if they refused to execute said deed of trust and notes to him, did sign said notes and deed of trust, and at once proceeded with defendant Crawford to the office of a notary public, before whom, in the presence of defendant Crawford, they acknowledged each of the three deeds of trust hereinbefore mentioned; that said deeds and notes were then taken by defendant Crawford to the office of defendant G. A. Watson, who was the attorney for said Dickerson; that said Dickerson, through his attorney, Gk A. Watson, then paid to said O’Day a check for $6,000 and received from O’Day the trustee’s deed made by virtue of the foreclosure of the O’Day deed of trust, said trustee’s deed conveying said land to plaintiff Mollie Lappin. That soon after all three of said deeds of trust and said trustee’s deed were filed in the office of the recorder of deeds in Greene county, Missouri.
“I further find that at the time plaintiffs executed the notes and deeds of trust in controversy to defendant Crawford, they believed that defendant Crawford would prevent the procuring of said $6,000 loan from Dickerson, and that plaintiffs further believed that unless said loan was procured on that day they would be unable to redeem said land from O’Day,
“I find that at the time last mentioned, defendant Crawford owned no interest, either legal or equitable, in said land and that no consideration passed from defendant Crawford to plaintiffs for said notes and deed of trust executed by plaintiffs to him.
“That at the time this suit was had, and thereafter, plaintiffs had no interest in said land, the same having been conveyed by trustee’s deed to E. C. Nichols, said conveyance being made by virtue of a foreclosure of a deed of trust executed July 14, 1900, by plaintiffs to secure to Nichols & Shepherd notes amounting to $2,175:
“That defendant Crawford is the owner and holder of said deed of trust and two $500 notes, the subject of this action.”
The court thereupon rendered its judgment and decree cancelling said notes and setting aside said deed of trust as prayed in plaintiffs’ petition.
I. The law in this case was settled in the opinion of this court on the former appeal in the 186 Mo. 462.
After a careful review of the testimony on both sides of this case, we think that the circuit court was fully justified in finding that John O’Day, who held a mortgage for $7,420' on the land owned by the plaintiff, had foreclosed the same and bought it in through his son John O’Day, junior. Prior to this foreclosure, tbe plaintiffs, the Lappins, had applied to the defendant, Crawford, to procure them a loan on the said lands for $7,000, stating to him that Mr. O’Day had agreed to throw off the $420 interest then due. Negotiations between the defendant Crawford and Jerome Dickerson were entered into, but Dickerson, after examining the farm, refused to lend more than $6,000. After the foreclosure the Lappins again
In other words, the testimony now establishes what the demurrer confessed on the former appeal, to-wit, that -the defendant was fully apprised of the necessities of the plaintiffs and that speedy action must be taken by them in order to redeem their lands, and knowing this, took advantage of plaintiffs and without consideration extorted the two notes and deed of trust from them, in excess of the $300' commission which they had agreed to pay and did pay him to procure the loan of $6,000 from Sprague, through Dickerson. Counsel for defendant argue at great length upon the discrepancies in the testimony of the plaintiffs but the fact remains undisputed in the record that Mr. O’Day voluntarily gave Mrs. Lappin $1,420 of the debt due him, as the writing in evidence fully attests, and that the Lappins then only had $6,000
Moreover having agreed to procure the loan for five per cent, or $300, the exaction of the promise of the additional $1,000 was clearly without consideration and nudwm pactum and the courts will not enforce such an unconscionable claim. As to the credibility of these parties, their evidence was heard by a judge who resided in the same county with all of them. He saw them and had opportunity to observe their manner of testifying and he believed the evidence of the plaintiffs and we think there is much internal evidence which corroborates them. The circuit court