*1 COURT .SUPREME Frazee. "Williamson v. legally complain. appellant can trial, which
No Errors impartial trial, a fair and He received properly substantial evidence. convicted accordingly Beeves, judgment affirmed. is below sitting. White, C., G., concurs; Railey, opinion foregoing PER CURIAM: The adopted opinion hereby of the court. All is as C., judges concur. A. ux. L. et DANIEL WILLIAM WILLIAMSON FRAZEE, Appellants. KIEFER, NICK DAVIS and CHARLES Two, 8, 1922. June
Division proceeding Equitable In a under Sec- Issues. TITLE: QUIETING 1. 1919, issues tendered if tlie tion Revised Statutes equitable equitable pleadings for re- and call in their nature equity lief, triable the chancellor. and is case one chancery Complete a -: Belief. court of ac- -: Where 2. cause, pleadings quires jurisdiction the limits of of a within complete give it will relief. A absolute on DEED OR. Intention. its face MORTGAGE: 3. conveyance mortgage, .a mort- whether or be a parties gage intention of the at the from must" be determined made; ,it one if made he the or the other retains it was time made, rights it was and the at the time the charactеr n accordingly. parties to it are determined -: How Ascertained. The intention of the -: at made it was to be an absolute the time whether conveyance sought mortgage, sur- is to be circumstances proper inquire transaction, rounding into time, prior negotiations, gen- their' situation relative having erally tendency pertinent fix facts and deter- into ' understanding. purpose and nature If there real of their mine the was intended a doubt to whether arise should n sale, doubt conditional such should be resolved or a of a favor Yol. 294] Inception: Applicatioh Loan. The -: Character of Proof: proof alleges party a deed ab- who burden of proof mortgage, solute on its face was intended to be *2 clear, convincing. cogent, unequivocal Yet when the must be loan, application inception the for a transaction had its in an closely to be a hold it scrutinize it and to courts inclined to clearly appears mortgage, afterwards unless it the changed their minds. Mortgage. -: Continuance If the ‘of debtor and relation
6. transaction, inception creditor, con- established at the of the face, tinues, mortgage. is the absolute on its clear, Demanding -: -: Interest. is 7. Where the evidence convincing unequivocal negotiations leading up that all relationship the execution the deed were to the effect that the grantors and lender borrower was to be established between the grantees, subsequent grantees gran- demand the thе year’s them interest on tors one the indebtedness shows that , changed character of the transaction was not about time executed, grantees the deed was and that intended and under- the deed was to continue as a stood that Discharge prop- -: -: of Prior Indebtedness. Where the erty was incumbered certain indebtedness at the time it was conveyed by face, duty a deed its absolute on it was the grantees, having paid mortgage notes, discharge and sur- grantors purchase price as a render if the conveyance; deed was intended as absolute and the fact discharged retained them and never treated the debt as creditor, having evidence the relation debtor and been cogent proof inception clear established transaction, continued, subsequent- such relation was not changed. ly duty appel- to Chancellor. -: Deference While it is the of an appeal judgment equity, weigh from a suit late court conclusions, own and reach its the evidence defer to the witnesses, findings particular- chancellor who heard the supports findings. ly evidence where substantial so Court. —Eon. A. from Scotland James Circuit Appeal Cooley, Judge.
AFFIRMED. 294 Mo. —21
322
Williamson, v. Franklin and Ben. Luther M. J. E. Jayne, J. appellants. face a regular question upon Tlie
(1) obtains presumption deed. The prima-facio it purports what just in all such cases that land, conveyance to be on its face, an pre- burden is to overcome this grantor east upon еvidence, sumption as a and establish nat- convincing; otherwise, clear, unequivocal Mo. Wolf, ural Bobb v. 148 presumption prevail. must Lee, 344; 364; Mo. 219 Rush, v. 156 Carson v. S. Jones v. Lubke, Gerhardt 633; 387; W. v. 236 Mo. Rinlde 410; Mo. Mo. Burk Tucker, Murphy, Leslie, 666; Bailey Co.', Duell v. 207 Mo. Trust plain- Not (2) was the burden *3 tiffs to the prove they gave was a devolved reasonable beyond doubt, but them to contract between prove the terms and the them and the as well under as conditions permitted which were to be to redeem. Bobb v. they 335. 148 Mo. Wolf,
Ií. V. & Ellison Campbеll Smoot for respond- ents. demonstrates beyond The evidence
(1) question in the appellants met beginning £‘ ’’ upon the of footing lending. borrowing and plain ’ tiffs on that evidence branch of the case that defend ants a number of proposed get men become sureties prevent for so as to a sale of home; others to them failing get join the three appellants, who were able amply to do so, they financially concluded would become for sureties the plaintiffs, provided their could be debts reduced to an amount not in excess dollars seventy acre land. per It is not clear, plaintiff’s testimony, from from that TEEM, Yol. 294]
Williamson v. beginning intended in as that defendants well, becoming indemnify take some kind of title to may bear situation surety plaintiffs’ This debts. proof lies. question the burden of to where Day, evidence the whole 295. If from 106 Mo. Cobb v. doubt resolve in the court will doubt, matter be Beasley, 138 Mo. Book v. favor of (2) have evi Britewell 249 Mo. Counsel McAfee, state dently conversatiоns, numerous overlooked the effect that their' clients, ments, and declarations of willing beginning land to take the security provided be reduced debts could charged than with more land not be so that the would per ex seventy made acre. also dollars And begin-' press in the that it was the intention admission security, equity, (a) ning A court of the land as take always construing seeks the intention a contract, language parties. whether of the contract, If the ambiguous, contract not fail oral doеs written, parties can be for that if intention reason, face, absolute on its ascertained. If a security, equity mort will hold it to be a court as gage. (b) Beasley, Defendants 138 Mo.
Book v. original plan was to take “some admit that the kind security. therefore not our title” as trouble We need respect about the intention selves January. prior the 10th Defendants contend straigktout original plans abandoned and a Respondents purchase upon. change agreed contend no original plans. Significant, made ever if *4 controlling, is the fact that a circumstance, plaintiffs warranty executed a note transaction deed, mortgage securing same, a chattel $4500, for conveyed its sale, face, bill absolute on property which of all of plaintiffs personal except their which owned plaintiffs goods. induced the household What divest to property they except themselves of all of the owned their purpose goods, reducing for the household sole of Williamson v. seventy per acre, on their the sum dollars
debts
land
convey
unless it was
to the defendants,
then to
same
they
right
given
redeem? Plaintiffs af-
improvements
costly
on the
terwards made
valuable
saying
justified
is not
cir
in
there
land. Wé are
point
that does
case
not
cumstance
the entire
deed,
(c)
being mortgage,
transaction as
mortgage.
be a
Such
chancellor found the deed to
The
conclusive,
finding
Shull,
is not
court. Gibson v.
this
REEVES, 0. This plead- 1919. The issues tendered Statutes Revised equitable ings hence it nature, in their ais equity. proceeding in sought to have a
Plaintiffs prevailed They face, declared a below, prosecuted appeal have and some their to this court. alleged (husband pеtition here) simple owners
wife, fee County; Scotland of land that on 14th acres they January, day made, executed delivered Daniel A. Nick Frazee, Davis Charles whereby conveyed writing an instrument Kiefer, subject all of lands, to the said defendants Savings, in favor $25,000 incumbrance of the State Quincy, day Illinois, Loan & Trust Co. dated the 20th January, day 1915; that also on the had 29th September, 1916, executed delivered to the Citi- a deed of Gorin, Mo., zens trust Bank, secure promissory which deed *5 Yol. 294] Frazee.
Williamson issory Gorin, to the Bank and notes said Citizens in- of trust at the said trustee named proceeded adver- *6 dnly
going agreement, which deed was and recorded County, Deeds Scotland the office Recorder of warranty pur- plaintiffs said while averred con- ported been have executed for a on face to appeared to be sideration of. $39,000 and yet conveyance in truth defendants, of estate to said real by parties, all of said and fact was security de- to the said be time, a and money аdvanced them in the to secure sums of prevent fendants of or a foreclosure advanced them to be securing and for the further of trust $14,000, purpose enabling of make sale of defendants to a said portion property reimburse to raise funds to of said discharge existing indebtedness. and to themselves alleged petition that defendant It further was portion interest in of said Charles Powers claimed'an purchase arising a contract of entered into be- land from whereby stip- him the other tween and had the other said defendants ulated consideration agreed him 236 real to transfer to acres of said estate. during years allege that and Plaintiffs further re- Frazee, 1919 the said Davis and Kiefer defendants prop- account of ceived over rentals said erty, under contract between and' that said sum, plaintiffs applied been defendants, should have and said payment interest due toward the on the first deed sums as were defend- trust and advanced such paid by including them; all taxes ants, desired property, or re- redeem said thereof such that,they ready willing maining were and unsold, petition, they by de- and, offered to the said might sum amount be fendants whatever found be together interest, due with them, offered comply terms and conditions of the contract, allegation pleaded by them. There was a further question, at the time of transaction reasonably $60,000, worth time of at the was Yol. 294] value reasonable market
suit advanced defend- said further $80,000, and averred claiming thаt the Kiefer, were ants, Frazee, Davis and in said real estate had no interest asserting' mentioned deed above conveyance mort- intended as an absolute gage, re- that otherwise the said fusing comply conditions with the terms ownership prop- of said contract asserted absolute erty. petition prayer as- the court money by defendants certain the amount furnished (cid:127) Kiefer; ascertain determine Davis and
Frazee, money them from rentals on said amount received respective rights land; determine the ascertain and *7 parties; equities adjust all, the interest of all of the of plain- warranty executed the to the deed and declare January, day tiffs the 14th of to the de- said mortgage; plaintiffs adjudged to be a that be fendants, right to redeem real estate there- and decreed the said that the said defendants be di- from, ordered and and re-conveyance lands, of such such rected execute or to plaintiffs, portion thereof as rеmains to unsold, and right, interest the title and to divest all therein failure, plaintiffs, and of defendants and vest same out general for relief. defendants, Frazee, of Davis Kiefer,
The answer and allegation they general was a with the that were denial, property owners of and that the absolute said warranty plain- title under mentioned in claimed deed pursuant petition, tiff’s and that thereto taken had premises possession enjoyed held and of said plaintiffs became their tenants and thereof, use estopped thereby to assert an adverse were interest. separate defendant, Powers, answer of Charles The plaintiffs owners fee said admitted that of January property prior 15, 1918, on and to but said that that date to other whether the deed defendants
Williamson, conveyed or mort- was an absolute estate be terms, whatever the gage, know, did be power grantees given full au- that the averred respect thority pur- him with contract with portion premises, chase and sale accordingly purchased es- had 236 acres said real he agreed contracted, he tate for which had paid portion he thereof stood had $29,500; ready, complete his willing able to terms prayed agreement, specific performance, he already paid him. be consideration restored replication admitted Plaintiffs that defend- purchased ant Powers 236 acres of said land; had power the other under terms convey agreement he and that him, was entitled specific performance of his contract accordance the terms thereof. testimony part
The on the tended support allegations petition, and there controversy no over the interest Charles Powers right to the 236 plete of said acres to com- purchase by paying thereof secure unpaid. or such thereof as remained testimony on the of the defendants controverted that as to the intention of the question at the time the The defеndants offered was executed. testimony'tending to show that conveyance. an *8 At the conclusion the trial the chancellor below warranty found that said was intended a mort- gage by plaintiffs grantees ; that as contended power portion make the sale of a clothed of said property liquidation of indebtedness, and that defend- ant Powers was entitled to have delivered to him a deed purchased by to the payments. completing his him, court
The of dis- ascertained amount grantees bursements warranty made in'said receipts and the received them from the rentals 329 Yol. 294] Williamson v. obligations of adjusted financial
said parties. all of the grantees have alone complaint
appealed,
here
that the court
testimony
declaring such
adduced,
erred,
in'
pertinent
noted
he
facts
Other
will
deed a
opinion.
of the
course
longer
question in this
hut that
State
is no
I.
It
proceeding
Revised
1970,
under
Statutes
if in
Section
equitable
pleadings
tendered
issues
1919, the
equitable
and call for
relief,
nature
in their
equity
suit!ty
triable
one
cause is
the case is
Mo.
[Lee v.
the chancellor.
213
Conran,
before
1151;
l. c.
404,
Burton,
111
v.
II. And it court well settled where a jurisdiction chancery acquires of a within cause, complete pleadings give re it will limits full [Powell lief. 204 W. Crow, v. Mo. 102 S. 1024; Co., Buckner v. Midland Farm & Land EeUef6t6 (Mo. App.) 190 Crook, S. W. Frazier 419; v. 204 (Mo.) S. W. 392.] mortgage A
III. deed absolute its face be a (27 Cyc. Jennings, 991; 159 554; Chаnce v. Mo. Book Beasly, v. 455; Hill, Mo. Hach Car v. Mo. 166), son Lee, but whether said deed in conveyance mortgage tended as an absolute or a must par from the determined intentions intention (Carson ties at the time of the transaction 178); supra, 1. c. and if made to be a Lee, conveyance it retains the character intend rights inception par time ed *9 330 OP Frazée. Williamson v. [Phillips accordingly. Jackson, v.
ties are determined 332.] l. c. “The character it said: In latter case was inception. wаs it If in its the transaction is determined mortgage beginning, so.” it remained premise may effect further IV. add the We sought parties must be that the intention of the in this surrounding transaction, circumstances proper inquire situa- into the relative connection preceding time, their ft16 ^on 'Par^es Proof pertinent generally negotiations, facts tendency having the real nature and determine fix Cyc. understanding.. design 1006; Pow [27 their there if supra, moreover, l. And 487.] ell Crow, v. c. intend 'as whether doubt should arise a such doubt sale, then or a conditional ed as mortgage. [Powell v. in favor of shall be resolved Phillips supra; Jack Crow, supra; v. Lee, Carson Cyc. supra; 1006-7.] son, guide postulates foregoing; us we "With testimony in case was sufficient this consider whether parties the inference to warrant warranty question be a It is inception that at the on this record controverted negotiations intention of all of neighbors grantees friends in said preventing respondents, them a fore- would aid freely admitted of their farm. It closure sale attempted grantees, to or- others, that said Avith record respondents neighbors ganize and friends of en- profit enterprise, gage without to them, in the common straitened financial cir- help respondents in their preserve or at farm, cumstances a home. thereof to constitute a sufficient least grantees who were in said deed respondents, negotiated on behalf of as lend- time, the bur- borrowers, Avere while ers, and alleges proof who an ab- den of party 294] Yol. *10 proof be must that the
solute and deed is convincing cogent-,unequivocal (Jones Rush, and v. clear, Murphy, 397, Mo. l. 376; c. Burke v. 364, “yet 387), l. l. c. 408; 377, c. Rinkel v. 246 Mo. Lubke, inception application in when the transaction had closely it inclined to scrutinize loan, courts clearly appears mortgage, that unless it and to hold changed [Cobb minds afterwards.” their Day, 192 Mo. Becker, v. App. l. 106 Mo. c. Smith 278, l.
597, c. 602, 603.] admittedly pointed negotiations In this all the case, whereby relationship arrangement of lender to an and the defendants borrower be established between would plan appellants respondents, this that claim changed time be- executed, was about was deed they were enlist a sufficient cause unable to number get respondents. neighbor's “to behind” friends respondents part clear, The cogent, on the evidence was unequivocal convincing ques- in partiés mortgage, by the as a tion was as each every gave of their witnesses such details one purpose appellants on the evince a clear sus- rеspondents in tain their financial difficulties and not advantage respondents appeared them. take It payment in were not default of interest and principal note secured second they property, of trust on their in de- also payments their interest on trust, fault on the first deed of pressing obligations. and that there were other "When arranged appellants undertake would respondents’ prevent property, appellants the sale of they engage enterprise, would not in such insisted “backers,” basis than as lenders or of more per figure might that that acre, end $70 they required respondent, be exceeded William J. Wil- covering to execute their favor a bill of sale liamson, personal property the value of certain of $4500. disposed proceeds They applied this SUPREME OP COURT
Williamson so the indebtedness interest default and reduced premises equalled only per on entire that it acre $70 payment they in- then exacted and terest on the day March, first until the indebtedness tq respondent requiring inter- thus 1918, liquidated est an indebtedness which claimed assuming their in consideration of the deed made same January They their testi- mony, attorney corroborated this supervised respondent agreed who transaction, accept assumption full their indebtedness of his purchase consideration for the his farm. As stated, by respondents this was denied witnesses *11 respondents. theory facts tend to sustain the the prime Moreover, one tests in a case of this is whether kind thе'relation of debtor creditor-con- [Slowey McMurray, tinues. If so, is a appellants, having.paid 27 Mo. The after 113.] notes, retained said notes treated way. notes secured chattel in the same their, They discharged. never treated the debt as It was discharge duty obligations these surrender purchase price, notes to if regarded conveyance. deed were to be as an Cyc. [27 1010.] Supreme duty
V. it is the While of the Court to weigh yet conclusions, evidence and reach its own findings court dеfer to the chancellor who [McKinney
heard the cause. 215 v. Hawkins, particularly 250.] W. S. And is this chanceUor.t0 true if conclude we.. substantial weight of the findings. evidence his sustains [Daudt Steirt, 205 S. W. c. 222, l. 225.] findings
The of the learned chancellor who tried this correct, cause are and we will not interfere with the same. judgment accordingly affirmed so or- Bailey, dered. sitting. C., concurs; G., White, 1922. TEEM, Yol. 294] v. Letz. State foregoing opinion PER CURIAM: The Reeves, n opinion adopted court. All of as the
isC., judges concur. Appellant. LETZ,
THE STATE v. WILLIAM Two, June Division Tending Another to Prove CARNAL Evidence KNOWLEDGE: charging him Crime. information On the of defendant an trial knowledge having female unmarried had carnal eighteen ages previous of fifteen chaste character between the years, evidence of the for the trial court to admit it was not error death, body autopsy upon female after her of such of an details although she- as a result of tended to show that died such evidence abortion, such evidence tended to establish where a criminal foetus, age the date fact to establish which was relevant circumstances, and, prove conception, tended to with the other female, charged sexual with such intercourse that defendant having, by instruction, information, court cautioned the solely jury considered was to be such evidence charge. guilt, -: Demurrer to Evidence. The evidence defendant’s convincing, prop- being demurrer to the evidence was clear erly overruled. *12 Hearsay. Evidence, Female: -: Statements Deceased of- defendant, statements, have claimed to been fered made attributing doctor, her condition to another than to a female fixing the time of the at a when intercourse date defendant State, being gestae of res nor was out defendant hearsay. properly mortis, was excluded as in articttio made given for the State. instructions on be- -: »The Instructions opinion correctly fairly out and set of the State half giv- jury committed and no error was the case submitted ing them. court, Instructions. trial Refused Since the -: Defendant’s jury request, on circumstantial evi- instructed defendant’s subject credibility witnesses, good dence, moral notes of trust was subordinate to of trust for .and $25,000; second prom- payment of their defaulted
Notes
stance notes of the holder said sale oc- property tise and was to sale, said January, plaintiffs day cur on the 15th applied circumstances financial in straitened defendants, Kiefer, to the neighbors Davis and who Frazee, preventing to assist them friends, thereupon аrrangement by plain- sale; that was made whereby agreed tiffs the said it was defendants, plaintiffs the said sum would advance to defendants sufficient to interest notes, said of trust off and-deed by plaintiffs owing growing and other debts out plain- said loans real estate, said conditioned convey said tiffs said all of defendants would by agents real estate to be held the said defendants plaintiff. trustees alleged It was further that said defendants would productivity property apply utilize the proceeds of sаid liquidation toward the in- indebtedness, cluding by all sums advanced all the defendants and accruing any apply taxes surplus land, due on said and would liquidation principal indebtedness, discharge prin- liquidation and that for the of said cipal indebtedness the defendants were further said au- empowered to sell a real of said thorized estate and execute deeds therefor, and that ac- purposes complishing agency said trust said re-convey plaintiffs would re- mained of real estate; sаid that at all times it was under- re-convey prop- stood said defendants would erty plaintiffs payment of the sums payment advanced discharge defendants in the of the notes above described, other items in- plaintiffs, debtedness of and that in such event defend- faithfully ants would account to for all sums of money received them from the rentals of said lands. alleged reposing Plaintiffs that, full confidence the said executed and delivered a war- with, ranty fore- accordance deed to said