168 S.W.2d 1060 (Mo. 1943), 38021, Coleman v. Crescent Insulated Wire & Cable Co.

Docket Nº:38021
Citation:168 S.W.2d 1060, 350 Mo. 781
Opinion Judge:VAN OSDOL
Party Name:Marie W. Coleman and Paul Coleman, her husband, Appellants, v. Crescent Insulated Wire & Cable Company, a New Jersey corporation; Title Guaranty Trust Company of St. Louis, a Missouri corporation, Trustee for Frederick J. W. Stueck in a certain deed of trust, dated April 24, 1930, executed by plaintiffs as parties of the first part; Title Guaranty
Attorney:James T. Blair, Jr., and Taylor R. Young for appellants. Charles E. Ginn for respondents.
Judge Panel:Van Osdol, C. Bradley and Dalton, CC., concur.
Case Date:February 02, 1943
Court:Supreme Court of Missouri
 
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Page 1060

168 S.W.2d 1060 (Mo. 1943)

350 Mo. 781

Marie W. Coleman and Paul Coleman, her husband, Appellants,

v.

Crescent Insulated Wire & Cable Company, a New Jersey corporation; Title Guaranty Trust Company of St. Louis, a Missouri corporation, Trustee for Frederick J. W. Stueck in a certain deed of trust, dated April 24, 1930, executed by plaintiffs as parties of the first part; Title Guaranty Trust Company, as party of the second part and Frederick J. W. Stueck as party of the third part, recorded in the Recorder of Deeds' office in Barry County, Missouri, in Book 86, page 404; and Frederick J. W. Stueck, Respondents

No. 38021

Supreme Court of Missouri

February 2, 1943

Rehearing Denied March 2, 1943.

Page 1061

Appeal from Dade Circuit Court; Hon. Thomas W. Martin, Judge.

Affirmed.

James T. Blair, Jr., and Taylor R. Young for appellants.

(1) The payment of $ 2000 by plaintiffs and the execution and delivery of the notes and deed of trust sought to be set aside, having been extorted from plaintiffs by means of numerous threats of criminal prosecution and embezzlement and numerous threats to send Paul Coleman to the penitentiary unless the full amount of the alleged stock shortage was made good, was obtained by the Wire Company under duress. Mississippi Valley Trust Co. v. Begley, 318 Mo. 310, 275 S.W. 540; Hensinger v. Dyer, 48 S.W. 912, 147 Mo. 219; White v. Scarritt, 111 S.W.2d 18; Turner v. Overall, 172 Mo. 271. (2) The ten-year Statute of Limitations (Sec. 1002, R. S. 1939) is applicable in this action. Branner v. Klaber, 49 S.W.2d 169, 330 Mo. 306; Parish v. Casner, 282 S.W. 392. (3) Section 1013, R. S. Mo. 1939, is applicable to suits in equity for the cancellation of instruments affecting the title to real estate. Hoester v. Sammelmann, 101 Mo. 619, 14 S.W. 728; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; White v. Pendry, 25 Mo.App. 542; Lilly v. Kincaid, 160 Mo.App. 297, 142 S.W. 434. (4) Actions for cancellations of notes upon the ground of fraud are governed by Section 1014, R. S. Mo. 1939. Ludwig v. Scott, 65 S.W.2d 1034. (5) The Statute of Limitations does not run against a cestui que trust in favor of a trustee ex maleficio. Case v. Goodman, 156 S.W. 698, 250 Mo. 112; Elliott v. Landers Machine Co., 139 S.W. 356, 236 Mo. 546. (6) The equitable doctrines of laches and ratification are applicable only in those cases where the defendant, through lapse of time, has suffered loss. Beland v. Anheuser Busch Brewing Assn., 58 S.W. 1, 157 Mo. 593; White v. Scarritt, 111 S.W.2d 18; Garland v. Bacon, 322 Mo. 435, 16 S.W.2d 46; Bickel v. Argoyle Inv. Co., 121 S.W.2d 803, 343 Mo. 456. (7) All contracts by a foreign corporation, doing business in this State without authorization are void. Compliance with the statutory laws of this State as doing the acts constituting doing business, will not relieve such foreign corporation from the operation of the statutes preventing it from instituting a suit. A foreign corporation having no right to institute a suit, could not be prejudiced by the running of the Statute of Limitations against its purported claim. Booth v. Scott, 205 S.W. 633, 276 Mo. 1; Amalgamated Zinc & Lead Co. v. Bay State Zinc Co., 120 S.W. 31, 221 Mo. 7; Flinn v. Gillen, 10 S.W.2d 923; German American Bank v. Smith, 208 S.W. 878. (8) It was error to reject the proffered testimony of Mr. Heneghan, who, while acting as the attorney for plaintiffs, was told by Mr. Baer, attorney for the Wire Company that unless Coleman made a settlement in cash and secured the balance he would send Coleman to the penitentiary. Mississippi Valley Trust Co. v. Begley, 318 Mo. 310, 275 S.W. 541.

Charles E. Ginn for respondents.

(1) The five-year Statute of Limitations applies to actions for cancellation of mortgages and notes on the ground of fraud. Ludwig v. Scott, 59 S.W.2d 1024; White v. Pendry, 25 Mo.App. 542; Sec. 1014, R. S. 1939. (2) To establish duress, or undue influence, in procuring a deed, or any other contract formally executed, it requires proof that must be strong, clear, convincing, and leaving no ground for reasonable doubt in the mind of the chancellor. Atkins v. Henry, 80 Mo. 157. (3) In cases of duress or undue influence the certificate of the acknowledgment of the officer to the deed makes out a prima facie case that the execution was a voluntary act. Bell v. Campbell, 123 Mo. 1. (4) Courts of equity view with disfavor actions that are brought long after the transaction litigated has occurred, and long after death has sealed the lips of those familiar with occurrences so remote in point of time. St. Louis Union Trust Co. v. Bush, 145 S.W.2d 426, and cases cited; Snow v. Funck, 41 S.W.2d 2. (5) Suit brought after the death of deceased participants raises presumption that purpose of delay was to take advantage of evidence no longer capable of explanation by other party. Breit v. Bowland, 100 S.W.2d 599, and cases cited. (6) Partial payments on a note precludes the makers from asserting that the note was obtained by duress. A note obtained by duress is not void, only voidable, and if the maker elects to repudiate, must do so within a reasonable time. Bushell v. Loomis, 234 Mo. 371, 137 S.W. 257; Kellog v. Moore, 271 Mo. 189, 196 S.W. 15; Gard v. Arnold, 157 Mo. 538, 57 S.W. 1035. (7) Laches is a question of the inequity of permitting a claim to be enforced, the inequity being founded upon some change in the conditions or relations of the property or parties. Collins v. Lindsay, 25 S.W.2d 84.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Page 1062

[350 Mo. 784] This is a suit to set aside and cancel a deed of trust on real estate and the notes secured by it, and for an accounting. The suit was filed on February 2, 1940, and the trial of the case was concluded on June 27, 1941, resulting in a finding for the defendants and a dismissal of the plaintiffs' bill.

A rehearing has been granted herein and the cause is now reassigned.

The petition alleges that the notes were without consideration; that the execution of the notes and deed of trust, and the payment of certain moneys, was under duress; and that the payee of the notes is a trustee ex maleficio and, because of this, it is alleged, the notes are void. The answer is a general denial, pleas of statute of limitation and laches.

Respondents, defendants below, have moved to dismiss the appeal because the appellants' brief, they allege, violates Rule 15 of this court. We have compared appellants' brief with the abstract of the record. We think the brief is not sufficiently argumentative and incomplete to violate the rule and, we believe, that counsel for appellants have not purposely misstated the facts to mislead us. The motion is accordingly overruled.

It is necessary to review the facts.

The appellants, plaintiffs below, Paul and Marie W. Coleman, are husband and wife and, at the time of the trial, resided in St. Louis, Missouri. They have one daughter who, in the year 1930, was eighteen years of age and a school girl. Marie W. Coleman is the owner of a one-sixth interest in the lands described in the deed of trust, having acquired such interest as devisee under the will of her father, Patrick Martin, who, in his lifetime, was a respected citizen of Barry County, Missouri.

Paul Coleman was, from sometime in 1927 to January 20, 1930, the consignment sales agent at St. Louis, Missouri, of the respondent, Crescent Insulated Wire and Cable Company (hereinafter called Cable Company) whose principal office is in...

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