170 Mo. App. 55 | Mo. Ct. App. | 1913
Injunction to prevent a foreclosure by defendant who claims to be the owner and holder of the note described in and secured by a deed of trust. The court found for defendant and dismissed the bill, but granted a new trial. From this order defendant appealed.
The deed of trust in question was executed June 10th, recorded June 22, 1903, and was given to secure a note of even, date therewith for $2000, due five years after date with interest coupons attached. The whole trouble between the parties to this suit grows out of the fraudulent conduct of the beneficiary, Arthur M. Howell. He was a dealer in real estate, building houses in Kansas City and borrowing various sums of money from different sources. To secure these loans he would have his brother execute a note to him and secure it by deed of trust. Having a note payable to himself and thus secured, he, in some manner, would obtain the execution of a duplicate note, genuine as to signature, but fraudulent in that it could be negotiated as being secured by the deed of trust recorded' as security for the original.
At the same time, not known when, Howell prepared a duplicate of the note secured by the deed of trust above mentioned, so that there were two notes in existence each apparently secured by the deed of trust. Under one of these notes, the deed of trust was released on the margin of the record June 4, 1909, by B. C. Howard as assignee. Thereafter another deed
This brings us to a consideration of the remaining ground, to-wit, that the judgment was not justified by the evidence. If this does not mean that the judgment is against the weight of the evidence, it does mean that the evidence is not sufficient, in the opinion of the trial court, to sustain the judgment.
In support of the contention that his is the genuine note, defendant claims that the deed of trust and note were in the handwriting of and drawn up by Mrs. C. H. R. McElroy under the direction of her husband who took the acknowledgment as notary. And McElroy identifies defendant’s note as being in his wife’s handwriting. Defendant traces said note from the time of its execution until it came into his possession as follows: On the day the deed of trust was recorded June 22, 1903, Arthur M. Howell borrowed $8000 from the Pioneer Trust Company and put up as collateral five notes secured by deeds of trust, one of which is shown to be a “Howell note for $2000.” This note, whether it be the genuine or the duplicate note, remained with the Pioneer Trust Co. until October 9, 1903, when according to the company’s books the $8000 note was paid off and the collateral released, and presumably it was turned back to Arthur M. Howell. C. H. R. McElroy, for defendant, testifies that he on October 8, 1903, purchased for Howell the $2000 note and on the same day transferred it to his sister-in-law, Mrs. Alline II. Headley of Lexington, Ky. She assigned it to McElroy, McElroy assigned it to Lydia McChord, and she in turn assigned it back to McElroy on June 24,1908. And said note was in the possession of these parties in Kentucky and of McElroy until some time in 1908, when McElroy took it to the Bank of the Republic and allowed it to be put up as collateral for a loan made by said bank to said Arthur M. Howell. At this time there was only about $750 due on the note, Howell having paid back to McElroy all due thereon except said balance. Said note was thus held
It is true McElroy says the deed of trust and the genuine note were in his wife’s handwriting, but he destroys the force of this testimony by saying that there were many notes and deeds of trust drawn up for Howell under his direction, and he nowhere says this was the only note drawn by his wife.
We see nothing in the record from which it can be said that defendant is estopped from asserting his rights under the note. No knowledge of plaintiff’s course was traced to defendant. Without knowledge there can be no estoppel. Again, it is nowhere shown that plaintiff was induced or led to change his position by reason of anything defendant did or failed to do.
In view of the uncertainty and inconsistencies inherent in the testimony concerning the note in question, and the dissatisfaction of the trial judge therewith, we will follow the rule of deferring in large measure to his judgment in the matter of granting a new trial. This is no hardship upon defendant since, although he is required to again submit his. cause to . the chancellor, he also has therewith abundant opportunity to remove the perplexities that now exist in his testimony. Judgment affirmed.