101 Mo. App. 605 | Mo. Ct. App. | 1903
Just wbat kind of an action we bave before us is uncertain. In fact, tbe petition shows that-tbe appellant, although be is a lawyer of thirty years standing, did not know, or, at least, did not state exactly wbat tbe transaction was between him and the' bank in regard to tbe land in controversy. It shows, likewise, that be was in doubt as to tbe relief to which be was entitled. Tbe petition charges that tbe land was conveyed to tbe bank by a deed absolute in form but intended as a mortgage, and that appellant bad tbe right to redeem any time within two years after tbe date of tbe deed. No relief is asked which corresponds to that statement of the affair; for tbe appellant neither desires nor prays to redeem. Tbe other, allegations are that tbe land was sold to tbe bank for $750 and that more than five hundred dollars of tbe purchase price is still unpaid which tbe appellant ought to recover, for which be prays judgment and that a vendor’s lien be declared against tbe land.
Tbe same uncertainty in regard to tbe facts of tbe controversy appears in tbe appellant’s testimony. He swoi'e, among other things, as follows:
“Tbe bank bought tbe property Mr. Hough conveyed to me and I made a deed direct to tbe bank on December 22, 1898, tbe bank agreeing to surrender to me all of tbe notes, and on that day paid me $15. I opened an account with tbe bank leaving the balance of tbe purchase money in tbe bank and continued to draw*615 it out as shown by the cheeks and receipts to he offered in evidence, being the same checks and receipts mentioned and fully set out in the replication. In January, 1899, the hank notified me that it would not pay any more money on account of the property until the questions Judge Green had raised about the title should he settled.”
Immediately after that testimony he gave this:
“It was my understanding that I could pay up the $750 with interest and have the property reconveyed to me within two years. I said I would give a mortgage, hut Mr. Coxwell said it was not necessary, that they would turn it over to me at any time I wanted it.
‘ ‘ Q. By the Court: Did you ever offer to pay the whole amount of indebtedness? A. I did, and have demanded a statement of my account several times. They have kept on charging me with interest, but refuse to reconvey.”
So far as the point is concerned that the court erred in withdrawing the issues from the consideration of the jury, and deciding them himself, it is obviously not well taken. In any view of the petition or of the appellant’s testimony, this suit is in the nature of a bill in equity to have the deed to the bank declared a mortgage so Yancey may redeem, or to enforce a vendor’s lien. In either aspect it is as pure a chancery proceeding as can arise under the code and is not triable by jury, except that the judge below could, if he desired, have taken the jury’s verdict on the issues as advisory. Snell v. Harrison, 83 Mo. 651; Bronson v. Wanzer, 86 Mo. 408. But inasmuch as he was not bound to adopt the findings of the jury as the basis of his judgment, but was at liberty to disregard them, it was not error for him to direct a verdict for the bank and then enter judgment accordingly. Cox v. Cox, 91 Mo. 71; Nelson v. Betts, 21 Mo. App. 219. Our statutes provide that all actions to recover money or specific personal property shall be
The impression left on our minds is that the land was originally conveyed to the bank to secure the notes Yancey owed, with the understanding that he might procure further accommodation to the amount of $750. If this is true, the present suit will not he, because, as stated, Yancey neither offers nor asks to redeem.
But as the bank contends it made an outright purchase of the land, we will consider the case from that point of view, and so regarded the question is: Has the bank fully paid Yancey the purchase price, or is there a balance owing for which he should have judgment and the enforcement of his vendor’s lien?
As to this question we are inclined to defer to the finding of the circuit judge, who observed the demeanor of the witnesses and was in a better position to weigh the evidence than we are. Yancey’s testimony is so inconsistent that it makes but little impression in favor of the justice of his cause. It may be said, too, that when the evidence, is sifted, most .of the sums claimed to have been advanced by the bank are conceded by Yancey; so that but a small balance is coming to him, if we accept his testimony. Judge Green and M. S. Coxwell, the cashier of the bank, both swore positively that a full settlement of the matters in dispute between Yancey and the bank took place early in December, 1900. The parties met in the office of the bank at De Soto, and various payments were read off by Yancey, set down on a memorandum by Green, and their total cast, with the result that the bank was shown to be entitled to credits on its account with Yancey to the amount
“Q. Now tell the jury of that transaction between you and Judge Green concerning that receipt; tell them the circumstances under which you signed it? A. Yes, sir. I settled with the People’s Bank on the first day of December, 1900. I asked for a statement of my account but he never gave it. We sat down and Judge Green called off the items and set them down. I never did see these receipts and checks until they were delivered to me after the-settlement. When I got them I found that there was a mistake of $14.65. I waited a few days to see Judge Green and finally went to- his house. He took these papers (referring to slips pinned to express receipts and telegrams, marked ‘debit Yancey $5.07,’ forged check for $5.25, and check:- for $15, and receipt for $15 of date December 31, 1898) and went over to Mr. Coxwell’s and when he returned he said Mr. Coxwell did not want any trouble and said for me to pay you whatever you want, and then sat down and wrote out that check for $14.65, and I signed the receipt. ’ ’
After swearing positively that the settlement was made and that he afterwards found errors amounting to $14.65 which Green paid him by the direction of the bank, taking his receipt in full to avoid further annoyance, Yancey now contends the receipt only covered the payment of a sum due him because of certain errors which had been made. But this confesses the entire contention of the bank, for it admits there was a settlement and that mistakes occurred in it which were af-terwards corrected. In addition to the above facts, it was proven that on November 22,1900, nearly two years
Another contention of Yancey’s is that he ought to have credit for the price of certain timber which was sold off the land for $175 after the bank got it. How he is entitled to timber money if he had sold the land previously for $750, as he now insists he had in se'eking judgment for an alleged balance of the purchase money, he does not explain.
The evidence fully warranted the judgment given by the circuit court and it is affirmed.
