Schroeder v. Bobbitt

• Decision Date: 08 February 1892
• Citation: 108 Mo. 289,18 S.W. 1093
• Parties: SCHROEDER v. BOBBITT et al.
• Court: Missouri Supreme Court

18 S.W. 1093

108 Mo. 289

SCHROEDER v. BOBBITT et al.

Supreme Court of Missouri, Division No. 1.

February 8, 1892.

FRAUDULENT CONVEYANCES — SECURING CREDITOR — MISDESCRIPTION OF AMOUNT.

1. A failing debtor may prefer one creditor to another by giving the former a mortgage to secure an existing indebtedness, where it is accepted in good faith by the creditor for the sole purpose of such security.

2. A misdescription in a mortgage of a note as "for $12,000," when in fact it read "$12,057.44," does not vitiate the security, where the court limits the scope of the latter to the lesser sum named in the mortgage.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; JACOB KLEIN, Judge.

Suit by Mary E. Schroeder against Mary L. Bobbitt and others to set aside a deed of trust. Decree for defendants. Plaintiff appeals. Affirmed.

Eber Peacock, for appellant. Collins & Jamison, for respondents.

BARCLAY, J.

The deed which plaintiff's bill seeks to set aside is in the nature of a mortgage, securing payment of some $12,000. The defendants are the holders of the secured indebtedness, and other parties, variously interested in the subject-matter of the trust. It is unnecessary to state the pleadings in detail. Their general nature will sufficiently appear. The hearing developed these facts: Mary E. Schroeder, the present plaintiff, had a suit for divorce against William H. F. Schroeder in June, 1888, which was about to be called for trial when the latter executed the deed of trust mentioned, transferring certain parcels of land in St. Louis to a trustee to secure to Mrs. Bobbitt, one of these defendants, the indebtedness stated. It is admitted that Mr. Schroeder was then justly liable to Mrs. Bobbitt in the sum of $12,057.44 for money loaned, evidenced by a note for that amount, dated February 25, 1888. This note was unsecured until the execution of the said deed of trust, which, however, recited it as being for $12,000. The deed was duly recorded, June 8, 1888. Thereafter, July 6, 1888, plaintiff obtained a decree of divorce, as prayed, which adjudged to her, for life, all the interest and estate of Mr. Schroeder in one of the parcels of land covered by the deed of trust in question.

Plaintiff's chief contention is that this deed is fraudulent as to her; but it may shorten the discussion to mention, just here, that, in her bill of exceptions, plaintiff concedes that the deed was executed and delivered to secure the note of February 25, 1888; "that said note was misdescribed in the deed of trust because the attorney of Mrs. Bobbitt did not have it with him at the time said deed was drawn; that, whatever the intent of the defendant Schroeder in executing said deed of trust may have been as against the plaintiff, the...