Bohannon v. Combs

• Decision Date: 31 October 1883
• Citation: 79 Mo. 305
• Parties: BOHANNON, Plaintiff in Error, v. COMBS.
• Court: Missouri Supreme Court

79 Mo. 305

BOHANNON, Plaintiff in Error,

v.COMBS.

Supreme Court of Missouri.

October Term, 1883.

Error to Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

The facts, as shown in evidence, were substantially as follows: In 1864 Wm. E. Combs owned about 1,840 acres of land in Pettis and Morgan counties, and was largely indebted to various persons, much of the land having been bought on credit. On March 5th, 1864, he and his wife executed a deed of trust, conveying the above land and assigning a lot of notes to Heard and Trigg, to secure $17,000 due to J. L. Stephens, administrator (and which was obtained to pay some of the debts of Combs to other parties). This deed included the land in controversy; and a part of the land conveyed was a tract in Morgan county, bought by Combs from Perry and Jones, and for which he gave his note, with plaintiff bohannon as surety, on which Perry and Jones obtained a judgment, which Bohannon paid off, on account of which Bohannon obtained his judgment against Combs, on July 27th, 1867, for $4,250, and under which he bought the land in controversy. The deed of trust to Heard and Trigg provided that the trustees might collect the notes and sell any or all of the lands at public or private sale, and apply proceeds on the debt secured, and when the debt was paid the deed should be null and void.

Soon after this deed was made a number of executions in favor of other creditors of Combs were levied on the land, and were prior liens to the deed of trust. The trustees, to protect their title, bought the lands at sheriff's sale, under an arrangement with Combs and Stephens, the latter advancing the money, $2,001, for that purpose. On the trial it was admitted that this purchase was in aid of the deed of trust, and the title acquired was only a security, and subject to the terms and conditions in the deed of trust. The trustees, co-operating with Combs, sold a large amount of the land, and paid off all of the secured debt except $2,500. Among others, the trustees sold the land in Morgan county, bought by Combs from Perry and Jones, to one J. P. Sheerer, of Ohio, for $12,280, of which $4,280 was paid in cash, $2,000 in a note, and the balance, $6,000, in the estimated value of a certain mill property in Ohio, to be conveyed to Wm. E. Combs. Combs and wife also executed to Sheerer a deed confirming this sale by the trustees, and warranting the title. Stephens, having made a settlement as administrator of the estate of Davis, turned over to one of the heirs, Daniel G. Davis, Jr., the balance of $2,500 unpaid, and Combs arranged with Daniel G. Davis, Jr., to extend the time and take new notes for the payment of the $2,500.

Combs then made several trips to Boonville (where Trigg and Stephens lived), urging them to release the land, as they had been satisfied, and soliciting them to make a quit-claim deed to his wife. Having learned that Davis considered himself secured, Trigg and Stephens, on September 14th, 1868, executed a quit-claim deed which Combs presented to them, by which, in consideration of $1, they “remised, released and forever quit-claimed to H. L. Pigg, trustee for Nancy H. Combs,” 475 acres of land (including the land in controversy). Trigg and Stephens both testified that they received no consideration for this deed, except the previous satisfaction of the debts secured; that neither Mrs. Combs nor Pigg paid them anything whatever; that they never saw nor had any transaction with either of them; that the only purpose in making the quit-claim was to acknowledge satisfaction of the debt, and to release the land from the incumbrance of the deed of trust; and that they made it to Mrs. Combs simply to comply with the request of Mr. Combs, who was the only person they saw or dealt with in the matter. On the same day Nancy H. Combs and Pigg, as her trustee, executed a deed of trust on the same land to John Heard, to secure the $2,500 due to Davis.

In the meantime judgments had been rendered against Wm. E. Combs, as follows: On February 27th, 1867, in favor of Wright & Co., for $1,362.04 with ten per cent; on July 27th, 1876, in favor of Bohannon, plaintiff, for $4,250 with ten per cent; and on August 2nd, 1867, in favor of Hughes and Wasson, for $675.98. Upon these judgments a number of executions had been issued and returned unsatisfied. There had also been issued and returned unsatisfied prior to the quit-claim deed to Mrs. Combs, three other executions against Wm. E. Combs, in favor of different persons, for about $700, and afterward there were issued and returned unsatisfied five other executions against Wm. E. Combs, on still different debts, for about the same amount. Some time after the quit-claim was made to Mrs. Combs, Wright & Co. procured the fifth execution on their judgment against Combs and levied on a large amount of land as his property, including the land in controversy, and advertised it for sale. Combs went to a friend, Collier, explained the situation, and induced him to undertake an adjustment with Wright & Co. Collier went to St. Louis, but failed to accomplish anything with Wright & Co., who referred the whole matter to their attorney, Burke. Collier then saw Combs and agreed to assist him. Collier, Combs and Burke met in Sedalia on the day the land was to be sold, and it was then arranged that Burke should be paid $200 in cash, and that Combs, with Collier as surety, should execute a note to Burke for $2,000, to be held until the Wright & Co. debt was paid, and that Collier should buy the land at the sheriff's sale, and hold the same as security for what he might pay. Thereupon Combs paid Burke $50, and Collier paid the other $150 for him, and Combs and Collier executed the note for $2,000. Collier went to the court house--Combs went the other way--and Collier became the purchaser of the land (including that in controversy). Combs also turned over to Collier a number of notes taken in payment of portions of the land which...