214 Mo. 142 | Mo. | 1908
This is an appeal from a decree rendered by the circuit court of Jackson county, Missouri, in favor of the plaintiff against the defendants in a suit in equity, the object and purpose of which was to obtain a decree that a certain indebtedness represented by a note of $750, executed by Susie Hicks and E. Hicks, her husband, to E. S. Truitt, and secured by a deed of trust executed by them to W. E. Garrett as trustee, conveying the west half of lot 20, Saighman Place, an addition to Kansas City, Missouri, had been paid and satisfied, and to set aside and decree as null and void a certain trustee’s deed made by the said Garrett as trustee on August 1, 1903, for the purpose of foreclosing said deed of trust and satisfying said note; and also to set aside a certain quitclaim deed made by defendant Charles Prather to El
The defendant Hairgrove for his separate answer denied all of the allegations of the petition except those hereinafter specifically admitted in his answer. He admits that the plaintiff Mrs. Laura E. Prather and Charles E. Prather were at the time of the filing of the petition herein, husband and wife, and that prior to August 1, 1903, the record title to the property known and described as the west half of lot 20, Saighman Place, Kansas City, was in the said Charles E. and Laura E. Prather, and that at the time of the filing of the petition herein there was an action of divorce pending in the circuit court of Jackson county, Missouri, wherein Charles E. Prather was the plaintiff and said Laura E. Prather was defendant, and that said court made an order on Charles E. Prather for the payment of $150 alimony pendente lite, and that at the time this suit was brought, the said amount had not been paid. Said defendant further admits that on August 1, 1903, Charles E. Prather made, executed and delivered to defendant a quit-claim deed to the aforesaid described real estate and the same was on said date duly recorded. Defendant further represented to the court that the said property was at and prior to the date of purchase thereof by said Charles E. Prather encumbered by a deed of trust in the sum of $750 and the said deed of trust was a bona-fide and existing encumbrance on said property therein described; that on the 24th day of September, 1900, said Charles E. and Laura Prather acquired the same by warranty deed; that by the terms of the con
The defendant Charles Prather admits that he was the husband of the plaintiff at the time alleged by plaintiff; that he was a joint owner of the property with her, and that he conveyed the same by quit-claim deed to his co-defendant, Elmer E. Hairgrove. He denies that he ever paid off the note or the deed of trust on said property and alleges that the deed of himself to said Hairgrove was a bona-fide deed for good and sufficient consideration. He denies all manner of unlawful combination and confederacy wherewith he is charged in the petition and prays to be dismissed.
On the 6th day of June, 1900, Mrs. Susie Hicks and her husband E. Hicks, executed and delivered to
On the part of the plaintiff, E. B. Field testified that he held this note for $750 as the agent of Dorothy Mills, the guardian of the Mills heirs. He testified that on or about the 13th of May, 1903, a Mr. Stewart, a representative of E. S. Truitt & Co., a real estate firm, came to his office and said to him that Prather wanted to pay the Hicks note, and was told by Field that if Prather wanted to pay it off he would have to pay the interest up to June the 6th. Stewart then said, “You get- the note and I will try and see what he says;” that he would take the note to Prather and see if he would pay the interest to June 6th, and if he did not, he, Stewart, would bring the note back. Thereupon Mr. Field allowed him to take the note and after having been gone some thirty or forty minutes Stewart returned and handed Field a check for $772.50, the amount of the principal and interest due on the note at its maturity, June 6, 1903.
On the part of the defendant, F'. W. Stewart testified that he was engaged in the real estate business in the employmnt of the firm of E. S. Truitt & Co.,that he knew Mr. Field and defendant Hairgrove and Prather. He testified this loan of $750 was made through the office of E. S. Truitt & Co., who sold the note to Mr. Field for the guardian of the Mills heirs. That before the note became due Prather asked witness if Truitt & Co. could extend it and witness took the matter up with Mr. Field, who said he would extend1
Defendant Hairgrove testified in regard to this matter. He stated that he had been practicing law since the year 1884 and in Kansas City since the 29th of October, 1900; that shortly after he became acquainted with Prather, the latter employed him as an attorney .to commence, a divorce proceeding; pending that proceeding, he had negotiations with Mr. Mastin, Mrs. Prather’s attorney, looking to the settlement of the property rights of the parties, and while the suit was still pending he learned that this note and deed1
The value of the Saighman lot was shown to be from $1,050 to $1,350.
W. R. Lemley testified that he loaned the defendant E. E. Hairgrove, the money to purchase the Hicks note, and it was afterwards refunded to him in a draft from J. N. Hairgrove; that he was made trustee in the Dockson deed of trust without his knowledge.
This is about the substance of all the testimony. The circuit court by its decree adjudged' that the transaction between Hairgrové, Truitt, Stewart and Field constituted a payment of the note secured by the deed of trust executed by Susie and E. Hicks and at first decreed that the sale by Garrett as trustee to Hair-grove was null and void and also a quit-claim deed from Charles Prather to Hairgrove, but afterwards on a motion for new trial, the court upon further consideration struck out so much of the decree as annulled and held void the quit-claim from Prather to Hair-grove and the deed of trust from Hairgrove to secure the Dockson note, and in lieu thereof adjudged and decreed that said quit-claim deed to Hairgrove and said deed, of trust by Hairgrove in favor of Mrs. Dockson were subsequent liens to the lien of the judgment for alimony and costs in the divorce case.
When Field delivered the note to Stewart, the original indorsement by Truitt was on the back of the note unerased and the note thus indorsed by Truitt, the original payee, was delivered by Stewart, the agent of Truitt, to Hairgrove. The only evidence to support the claim of the plaintiff that this transaction worked the payment of the note and the extinguishment of the debt which it evidenced is the testimony of Field that when Stewart came to him to get this note Stewart said that Prather wanted to pay it off, and that when he turned over the note to Stewart he did not say anything about selling. Stewart testifies that he has no recollection of saying to Field that Prather wanted to pay it off. And Prather testifies that he did not pay it off and made no arrangement with anybody to pay it off for him, and furnished no money with which to pay it. The learned counsel for the plaintiff insists that Wolff v. Walter, 56 Mo. 292, is decisive of this contention that this transaction was a payment and not a transfer of the note and bases his insistence upon the language of Judge Adams in that case, to the effect that, “There could be no legal transfer of .the note,
In Thompson v. Longan, 42 Mo. App. 153, Judge Griiiii, in discussing the identical proposition advanced by the plaintiff herein, said: “In the matter of the
Now applying the law announced in that case to this, it is clear that Field clothed Stewart or Truitt, for whom Stewart worked, -with the evidence of ownership of this note. The note was indorsed by Truitt, the original payee, and Hairgrove applied to Truitt to purchase the same. As said in Thompson v. Longan, supra, as to Hairgrove’s intention to purchase the note,
In Swope v. Leffingwell, 72 Mo. 348, the question of purchase or payment was the point for decision, and this court said: “The authorities are all to the effect that ‘if money be paid, not by one who is a party to a judgment and liable upon it, but by some third person, the judgment will be extinguished or not according to the intention of the party paying. ’ ” In that case this court quoted with approval from Harbeck v. Vanderbilt, 20 N. Y. 397. In that case Gray, Judge, said: “Every judgment purchased and paid for is, so far as the plaintiffs in it are concerned, paid; but if at the time of payment an assignment is made by the plaintiffs to a third party for the benefit of one with whose money or credit the payment is made, the judgment, although in one sense paid, is not satisfied, but remains subsisting and valid, until it has answered the purposes for which it was assigned.” And Selden, Judge, in a concurring opinion, says: “It is equally clear that if the money be paid, not by one who is a party to the judgment and liable upon it, but by some third person, the judgment will be extinguished or not, according to the intention of the party pay
In Campbell v. Allen, 38 Mo. App. l. c. 30, it was said: ‘ ‘ The question is, did the transaction amount to a payment, or was it a purchase of the note1? There can be no doubt as to Mrs. Price’s intention in the matter. She purposed becoming the owner of the note. She intended a purchase of the instrument, not its payment. It is true that the bank officer, holding for collection for Mr. Black, refused to pen an assignment on the note, and that Mrs. Price took the same without such indorsement. Yet she paid the $112, and the note and the deed of trust were given into her possession, with a distinct understanding, as the evidence shows, that she was then the owner, and she was then the owner to every intent and purpose. It did not require an indorsement in writing to invest her with the ownership' of the property. Mrs. Pollie Price was not a party to the note, was under no legal obligation to pay it. This being so, and it being the clear intention, from the inception of the transaction, that she should use her own money, as she did, to purchase, and not to pay off and discharge the debt, the law will heed such intention and enforce the rights to the property.” As already said, as to Hairgrove’s intention to purchase and not to pay the note, there is absolutely no doubt in the case. On the other hand, it is equally clear that Truitt did not regard
II. But it is insisted that the record discloses a conspiracy to deprive the plaintiff of her interest in