Lee v. Turner

Citation15 Mo.App. 205
PartiesARTHUR LEE ET AL., Respondents, v. THOMAS F. TURNER ET AL., Appellants.
Decision Date12 February 1884
CourtCourt of Appeal of Missouri (US)

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and remanded.

THOS. T. GANTT, for the appellants.

LOUIS GOTTSCHALK, for the respondent Roemheld.

BAKEWELL, J., delivered the opinion of the court.

The plaintiffs were trustees in a deed of trust made to secure the payment of certain promissory notes. The net proceeds of the sale of the property on foreclosure, in the hands of the trustees, were claimed by three different persons: Thomas T. Turner, the original payee of the notes; Brainard M. Million, to whom the principal note was delivered, after maturity, by Turner; and William Roemheld, to whom this note was delivered by Million as collateral security for a loan. These persons were made defendants, and were required to interplead for the fund. Each defendant, in a separate answer, sets up the grounds upon which he claims the proceeds of the sale. On hearing, the court decreed that the interplea of Million be dismissed, and that out of the money paid into court by plaintiffs, $3,000, with interest from August 22, 1881, at ten per cent, be paid to Roemheld, who is required to surrender into court, for such disposition as the court may direct, the principal note delivered to him as collateral, and also Million's note to him for the money lent by him to Million; and that the remainder be paid to Turner, and that Turner and Roemheld pay the costs. From this decree Turner appeals.

It appears from the evidence that on February 22, 1876, August Rohn and wife executed to plaintiffs a deed for a lot of ground in St. Louis to secure seven promissory notes of same date, all made by Rohn to the order of Turner, as trustee of Rebecca Briggs, all bearing interest after maturity at ten per cent; the principal note was for $9,000, payable in three years; the other notes were interest notes for $450 each, payable at intervals of six months. The three first maturing interest notes were paid. The other notes were not paid, and the taxes for 1878 were also not paid. The deed contained a covenant that Rohn should pay all taxes, and for default in this respect, or in payment of any of the notes, the trustees were empowered to sell on thirty days' notice by advertisement. Rohn died in 1878. In March, 1879, the trustees, at the request of the holder of the notes, advertised the property for sale. This advertisement was not inserted for thirty days, but for twenty days only, owing to a mistake of the trustees. A sale was, however, made under this defective notice, and the property was knocked down to Turner, the holder of the notes, at $6,000. The trustees applied the net proceeds of this sale first to the interest notes, which were thereby extinguished and cancelled, and then to the principal note, on which a credit of $4,633.08 was indorsed. The trustees then made a deed to Turner for the property with the usual recitals. Turner took possession without objection; the tenants attorned to him; he paid delinquent taxes and remained in peaceful possession, believing that the foreclosure was valid, until July 1, 1881, when an offer was made to him to purchase the property for $9,000. Turner accepted the proposal; but, when the would-be purchaser examined the title, he discovered the defect in the proceedings to foreclose. There seemed to be nothing for it but to sell again. This was done, and the property at the second sale brought $12,000. This sale was made in April, 1882. Meanwhile, however, Turner, at the suggestion of Million, had taken steps to collect the remainder which, after the first sale, appeared to be due on the principal note. The estate of Rohn was insolvent, but Million believed himself to have the means of showing that certain conveyances of Rohn were made in fraud of creditors. He communicated his suspicions to the Lees, and proposed to begin proceedings at his own cost to set aside these conveyances, if Turner would give him half of what might thus be realized out of his supposed claim against Rohn's estate. Turner agreed to this, and, to further the arrangement, delivered to Million the Rohn note for $9,000. At the time the note was delivered to Million, it had the following indorsement: “Pay Brainard M. Million, or order, without recourse on me. Thos. T. Turner, trustee of Rebecca Briggs.” March 10, 1879. Credit by proceeds of trustee's sale, this day, $4,633.08. Arthur Lee, John F. Lee, trustees.” At the same time, on the 23d of April, 1879, Turner and Million entered into a written agreement. This agreement sets forth that Turner has assigned and delivered to Million by indorsement, without recourse, the note of Rohn of February 23, 1876, on which was due $4,400.67 on March 10, 1879; which note is assigned by Turner and accepted by Million in trust; that Million shall proceed to collect the note with all dispatch and retain one-half of the proceeds so collected, whether by suit or otherwise, in payment for his services, and pay the other half to Turner so soon as collected. Million to pay all costs of the suits or other proceedings instituted for the collection of the note, and to save Turner harmless therefrom and from all damages. If, at the end of eight years, nothing shall have been collected by Million under the agreement, he is to return the note to Turner. Million having obtained the note under this agreement, proceeded to prove up several demands against Rohn's estate in his own name in the probate court. These demands were allowed and placed in the fifth class, on June 14, 1879; they amounted altogether to over $12,000, and included the balance appearing due on the note of Rohn to Turner, according to the credits on the back of that note. There was an appeal taken from these judgments on the note, which is pending in the supreme court. Million also began proceedings in the circuit court to set aside Rohn's conveyances. In all these proceedings Million employed counsel, and these facts were known to the Lees and to Turner. About the 1st of August, 1881, the mistake in the first advertisement having been discovered, the Lees, as trustees, inserted in the Post-Dispatch, a St. Louis daily paper, another advertisement of sale under the Rohn deed of trust. But, on the 31st of August, Rohn's administrator began proceedings to enjoin this sale, in consequence of which it was delayed until the next spring. Whilst this advertisement was in the St. Louis paper, Million applied to Mr. Uhlman, an examiner of titles in St. Louis, for a loan upon the Rohn note. Uhlman tried to negotiate this in bank. But the banks declined the paper, as not being such paper as banks discount. Roemheld, who is a man in prosperous circumstances, and who frequently lent money upon real estate, applied to Mr. Uhlman about the investment of some money, as he was in the habit of doing. Thus Million and Roemheld were brought together. Roemheld looked at the real estate described in the Rohn deed of trust, and told Uhlman that he considered it sufficient security for a loan of $3,000, and directed him to examine the title. Roemheld knew nothing about Million, and told Uhlman that he looked to him to make the thing secure. Uhlman examined the title, and found it to be perfect in all respects, and gave a certificate to Roemheld that the title was vested in Rohn's legal representatives; that the sale by trustees on March 10, 1879, was void, and that the deed of trust securing the Rohn notes of February 22, 1876, was a first lien. Then, on August 22, 1881, Uhlman obtained a written opinion from an attorney, based upon his abstract, to the effect that the foreclosure of March 10, 1879, was void, the deed of trust of February 22, 1876, a...

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3 cases
  • Polliham v. Reveley
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1906
    ...accompanies the note into the hands of a transferee, but this is not so when the intention of the parties is otherwise. Lee v. Turner, 15 Mo. App. 205; Id., 89 Mo. 489, 14 S. W. 505. The notes Reveley bought were not only past due and dishonored but had been marked paid out of the proceeds ......
  • Lee v. Turner
    • United States
    • Court of Appeal of Missouri (US)
    • February 12, 1884
    ...15 Mo.App. 205 ARTHUR LEE ET AL., Respondents, v. THOMAS F. TURNER ET AL., Appellants. Court of Appeals of Missouri, St. Louis.February 12, APPEAL from the St. Louis Circuit Court, BARCLAY, J. Reversed and remanded. THOS. T. GANTT, for the appellants. LOUIS GOTTSCHALK, for the respondent Ro......
  • Neuhoff v. O'Reilly
    • United States
    • United States State Supreme Court of Missouri
    • November 28, 1887
    ...title against the real owner, who is estopped from claiming title thereto." The rule thus announced is emphasized in the case of Lee v. Turner, 15 Mo. App. 205, where it is said, "if the true owner of a negotiable note over due, or non-negotiable note, clothes another with the usual evidenc......

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