44 Mo. App. 650 | Mo. Ct. App. | 1891
This was a suit in equity, the object of which was to obtain a decree to perpetually enjoin the defendant Doehla from making sale of certain real estate, under a deed of trust executed by Benjamin Derkum and Pauline Derkum, to said Doehla, as trustee to secure a note given by John A. Derkum for $650. It was alleged in the petition that one Nicholas Melcher, plaintiff’s intestate, in his lifetime, for the consideration of $2,000, by deed of general warranty, conveyed the real estate described in the deed of trust to Pauline Derkum, his daughter, who was then the wife of Benjamin Derkum; that said Benjamin Derkum and Ms wife executed to said Melcher their notes for part of the purchase price of said real estate, wherein was retained a vendor’s lien; that afterwards the said Melcher and said Pauline Derkum had departed this life, and that, the said notes being unpaid, a judgment in favor of plaintiff, as administrator of Melcher, had been rendered in the Cole circuit court, against the said Benjamin Derkum individually and as the guardian ad litem of Amelia Derkum, the sole surviving heir of the said Pauline Derkum, deceased, declaring that said real estate was subject to a lien for the unpaid balance on said notes, etc. It was further alleged that the said John A. Derkum had departed this life, first making a will, wherein it was provided that to each of his heirs therein named should be given $5, and that the resi*due and remainder of his property, both real and personal, should go to his widow, Maria S. Derkum, for
The plaintiff, to sustain the issue in his behalf, offered and read in evidence the judgment described in his petition. It was shown by the probate judge of Cole county, that the said note for $650 did not appear in the inventory made by defendant of the said estate ; that, after defendant had filed his inventory, witness had seen the note in the hands of defendant, and, supposing that it belonged to the estate of John A. Derkum, he had asked defendant where he had got it, and his answer was that his mother had given it to him ; that the note
This was substantially all the evidence offered in the case. The court found the issues for defendant and dismissed the petition. While there are several matters incidentally discussed in the briefs of counsel, it will be seen by reference to the pleadings and evidence that there are only two issues presented for our determination : First. Whether the note for $650 executed by Benjamin Derkum and Pauline Derkum, his wife, .to John A. Derkum, was given to said Benjamin Derkum as “the heir and legatee” of said John A. Derkum by Maria S. Derkum while she was an executrix of the will of the said John A. Derkum, and in charge of his estate. Second. Whether the said John A. Derkum, at the time of the execution of said deed of trust to Doehla as trustee to secure the said note of said Benjamin Derkum and Pauline Derkum, knew that the purchase price of the said real estate had not been paid by the said purchasers, Benjamin Derkum and Pauline Derkum, to Nicholas Melcher, and that the latter retained a vendor’s lien thereon for the amount thereof.
Under the evidence we think this note is an asset of the estate of John A. Derkum, and that it has not been paid off or discharged. In this view of the case the question of the power of the executrix under the will does not arise.
As to the second issue we may observe that we have closely scrutinized the abstract and have utterly failed to there find evidence sufficient to satisfy us that it should be sustained. Even, if it be conceded that Maria S. Derkum was the agent of her husband in making the loan of the $650, it does not appear that in the talk she had in the presence of Doehla with Melcher, Benjamin Derkum and Pauline Derkum that any mention was made of the Melcher notes. It nowhere appears that she was in any way apprised of the transaction between Melcher and Benjamin and Pauline Derkum in respect to the sale and purchase of said real estate. We hardly think that the fact was made known to old Mrs. Derkum that Melcher had notes amounting to $2,000, which were then a lien on the property. Had this knowledge been imparted to her, the probability is that she would
Under the allegations of the petition, the plaintiff cannot question the validity of the note or the deed of trust securing it. This is a sufficient answer to so much of plaintiff’s brief as calls attention to that matter. We may, however, in passing along, remark further that the said deed of trust conveying the real estate of the wife to Doehla, as trustee to secure their joint note of the husband and wife to John A. Derkum, was valid. R. S., secs. 2396, 6868; Wilcox v. Todd, 64 Mo. 388; Hord v. Taubman, 79 Mo. 101; Wannell v. Kem, 51 Mo. 150; Clark v. Rynex, 53 Mo. 380 ; Bartlett v. O’Donoghue, 72 Mo. 563.
The appellant contends that on the undisputed facts, in case of sale, the court should have ordered the proceeds of the property to be divided between plaintiff and defendant by an equal per cent, of the same, according to the respective claims. We can discover no ground of principle upon which this could have been done. Even if the petition authorized such a decree, we do not think the proofs do. The decree of the circuit court is affirmed.