77 Mo. App. 546 | Mo. Ct. App. | 1898
This is an action to foreclose a deed of trust. Herman H. Wittmer, the grantor, Henry M. Knox, the trustee, George W. Campbell, the original payee of the notes, and William C. Richardson, admin
Plaintiff had in his possession and claimed to own the note for $580; three of the notes for $20 first maturing, and eighteen of the notes for $30 first maturing. These notes were indorsed in blank by Campbell. The-remainder of the notes were assigned by Campbell to Jeptha JEL Simpson, now deceased, to secure a loan of' $1,800. Campbell failed during the lifetime of Simpson to pay his debt in full. Richardson the administrator of the estate of Simpson held the collateral notes to secure the balance of the indebtedness. Richardson denied that the plaintiff owned the notes claimed by him, and asserted that either the notes had been paid, or that under an agreement between plaintiff, Campbell and Simpson, the notes held by Simpson were to have priority in case of a sale or foreclosure of the deed of trust. Under these circumstances the plaintiff commenced the present action of foreclosure, in which he-asked that the disputed ownership of the notes held by him should be determined; that his claim of preference-
In addition to a general denial, the separate answers of Richardson and Knox set forth that after the institution of the suit Knox, at the request of Richardson, advertised and sold the property under the ■deed of trust to satisfy the notes held by Richardson; that the latter had purchased the property at the sale for the benefit of the estate of Simpson and that he had received from Knox a trustee’s deed therefor. On motion of the plaintiff the foregoing matter was stricken out as presenting no defense to the action. Campbell •denied that the plaintiff owned the notes claimed by him, but averred that they had been paid. Wittmer admitted the plaintiff’s alleged ownership, and he also admitted that the notes held by him were entitled to priority of payment. When the case was called for trial Richardson demanded a jury. This request the circuit court refused, holding that the action was in equity. Upon the hearing the issues were found for plaintiff and decree entered in accordance with the petition. Richardson alone has appealed.
The appellant was not entitled to a jury trial. His argument that the action is one of foreclosure under the statute is not tenable. It has been held, and it is •conceded, that the statutory remedy is not exclusive. If the circumstances justify and require it, resort may be had to an equitable action of foreclosure. Fithian v. Monks, 43 Mo. 502; McClurg v. Phillips, 49 Mo. 315; Pemberton v. Johnson, 46 Mo. 342. In the present action the conflicting claims and contentions of the various parties in interest could only be fully and •completely settled by a court of equity. Campbell, Richardson and Knox, denied that plaintiff owned any
We are of the opinion that the circuit court did right in striking out that portion of appellant’s answer which set up a sale of the property under the deed of' trust and a purchase of it by the appellant. This alleged' sale was made after the institution of this suit, and hence is not binding either on the plaintiff or Wittmer. The existence of the facts and circumstances stated by plaintiff precluded the trustee from executing the trust until the conflicting claims and contentions, were
Wittmer paid the thirty dollar note first maturing. He then left the state. His wife remained in possession of the mortgaged premises. The plaintiff is a brother of Mrs. Wittmer, and for this reason he became mixed up in the business. After Wittmer left the plaintiff paid Campbell several sums of money on account of the note for $580. Campbell testified that the amounts were paid by plaintiff and accepted by him as credits on the note. The plaintiff testified that the money was paid with the understanding that when he paid the amount called for by the note and the accrued interest Campbell would transfer the note to him. After the plaintiff had paid several instalments, amounting to $240, and after the maturity of the note, Campbell assigned it, together with the other notes herein mentioned, to Simpson as collateral security for a debt of $1,800. After plaintiff learned that the note had been hypothecated he requested Campbell to go with him to see Simpson concerning further payments by plaintiff. Campbell testified that the conference was held and that Simpson refused to accept money from plaintiff on account of the notes except in payment thereof. Against the objection of appellant the court allowed the plaintiff in rebuttal to testify as to the conversation
The last assignment is that the decree of the court is against the weight of the evidence. The plaintiff produced the notes claimed by him. They were uneanceled and bore the blank indorsements of Campbell. This was prima facie proof of plaintiff’s alleged ownership, and, as they were the notes first to mature, they were presumptively entitled to priority of payment. Hurch v. Erskine, 45 Mo. 484; Mitchell v. Laden, 36 Mo. 526; Thompson v. Field, 38 Mo. 320. To. overthrow these presumptions the onus was on appellant to show that the notes were in fact paid, or that, by reason of an agreement or of certain circumstances, the plaintiff was estopped to assert priority of payment. On the issue as to the ownership of the notes there was considerable evidence on both sides. It presents a radical conflict. It would serve no good purpose to treat .of it in detail. The trial judge had a better opportunity than we to weigh the evidence and to judge of the credibility of the witnesses, and for these reasons we do not feel justified in disturbing his judgment.
With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so ordered.