Allen v. Newton

• Decision Date: 01 December 1924
• Citation: 266 S.W. 327,219 Mo.App. 74
• Parties: OWEN ALLEN and MINNIE ALLEN, Appellants, v. PATSY S. NEWTON, MARY CAROLINE NEWTON, GEORGE MILLARD NEWTON, the said CAROLINE and GEORGE MILLARD being minors, and MINNIE M. FITZGERALD, Curatrix of Said Minor Defendants, Respondents. *
• Court: Kansas Court of Appeals

266 S.W. 327

219 Mo.App. 74

OWEN ALLEN and MINNIE ALLEN, Appellants, v. PATSY S. NEWTON, MARY CAROLINE NEWTON, GEORGE MILLARD NEWTON, the said CAROLINE and GEORGE MILLARD being minors, and MINNIE M. FITZGERALD, Curatrix of Said Minor Defendants, Respondents. *

Court of Appeals of Missouri, Kansas City

December 1, 1924

Appeal from the Circuit Court of Saline County.--Hon. Robert M Reynolds, Judge.

AFFIRMED.

Judgment affirmed.

Burks & Rich for appellant.

Harvey & Bellamy for respondents.

OPINION

ARNOLD, J.

This is a suit to recover the sum of $ 80 on the ground that a usurious charge of that amount had been made on a loan obtained through G. W. Newton, now deceased, the action being against the devisees under the will of said Newton.

On February 11, 1921, plaintiff Owen Allen applied to G. W Newton who was a loan broker at Marshall, Mo., for a loan of $ 800 on his farm in Saline County, the proceeds to be used in paying off an existing mortgage of a lesser amount against the land. On the date of the application for the loan the notes and deed of trust securing the same were prepared and delivered to Allen to be executed by him and his wife. The documents were executed and delivered to Newton on February 18, 1921, and the transaction was closed.

The papers so drawn consisted of one principal note for $ 550, one for $ 150 and one for $ 100, each to mature five years after date, with interest coupons attached representing annual interest at seven per cent per annum; also one commission note for $ 80, all payable to said G. W. Newton. Each note provided an option for payment of $ 100 or any multiple thereof at any interest paying day, payable in annual installments over a period of five years, and a deed of trust securing all of said notes. The existing deed of trust was to be discharged and released from the proceeds of the loan in question, the balance to be paid to the borrower by the agent Newton.

G. W. Newton died on July 2, 1921, and defendant Patsy S. Newton, his widow, duly qualified as administratrix of his estate. Notice of her appointment was timely given and all creditors notified that unless their claims against the estate were filed for allowance within one year they would be barred as provided by law. Final settlement and distribution of the estate was made in September, 1922, and the $ 80 commission note in controversy was awarded to defendant Patsy S. Newton, as provided in the will. The other notes described in the deed of trust were not listed among the assets of the estate, and the testimony shows that none of the devisees, nor G. W. Newton during his lifetime, ever made any claim to any of the notes described in said deed of trust excepting the $ 80 commission note.

The testimony shows that at the time the $ 800 loan was secured, the deed of trust then existing against the land was held by two parties; that Mr. Newton obtained from them an amount sufficient to increase the loan to $ 800, and on February 18, 1921, when the deal was completed, the old deed of trust was released and satisfied of record; whereupon G. W. Newton endorsed the new notes, excepting the $ 80 commission note, to the respective owners thereof, being the two persons who made the loan.

On February 13, 1923, plaintiffs paid said principal notes and also the $ 80 note to Minnie M. Fitzgerald in whose hands they had been placed for collection, and the deed of trust was released.

The petition alleges that defendant Patsy S. Newton was the wife and Mary Caroline Newton and George Millard Newton are the two minor children of G. W. Newton, deceased, and that the said minors are under the curatorship of Minnie M. Fitzgerald; that on the 13th day of February, 1923, being the second annual pay day, plaintiffs paid all of said notes and interest to defendant Patsy S. Newton, or her agent. The petition further states "that the interest paid on said note was tainted with usury and that the eighty dollars was usurious and in violation of the statute laws of the State of Missouri, and that they were forced to pay same after the death of the said G. W. Newton, and that the estate of the said G. W. Newton had been finally settled before the maturity of this claim or the payment of the same and that it could not have been allowed against the estate of the said G. W. Newton, deceased."

The petition also charges that the said note of $ 80 so paid to Patsy S. Newton was usurious, and was exacted of plaintiffs in violation of the laws of the State of Missouri. The prayer is for judgment against defendants for the sum of $ 80, for attorney fees and for costs. The amended answer admits the execution of the notes and deed of trust and that they were paid to Miss Fitzgerald on February 13, 1923; and that the said $ 80 note described in the petition was made payable to, and was the property of, said G. W. Newton; that the same was executed and delivered to said Newton for a valuable consideration; that plaintiffs never at any time within one year after the issuance of letters testamentary and proper notice thereof demanded of the said Patsy S. Newton, as executrix, that she pay said alleged claim or demand, and never at any time filed their said claim with the probate court for allowance; that the alleged claim of plaintiffs, if they were ever entitled to recovery thereon, is barred by the Statute of Limitations, providing the same should have been filed against the said estate within one year after the issuance of said letters testamentary.

Plaintiffs filed a motion to strike out certain portions of the answer but it was overruled by the court. The reply was a general denial. By consent of parties a jury was waived and the cause was tried to the court. The issues were found for defendants and no declarations of law or findings of fact were asked or given. Plaintiffs filed a motion for a new trial which was overruled and they brought the case here by appeal. The facts are not in dispute, the...