Balding v. Farm & Home Savings & Loan Ass'n., 6016.

• Decision Date: 03 July 1939
• Docket Number: No. 6016.,6016.
• Citation: 131 S.W.2d 57
• Court: Missouri Court of Appeals
• Parties: BALDING v. FARM & HOME SAVINGS & LOAN ASS'N OF MISSOURI et al.

131 S.W.2d 57

BALDING v. FARM & HOME SAVINGS & LOAN ASS'N OF MISSOURI et al.

No. 6016.

Springfield Court of Appeals. Missouri.

July 3, 1939.

Rehearing Denied July 24, 1939.

Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.

"Not to be published in State Reports."

Action to recover the withdrawal value of certain shares of stock by Frank Balding against Farm & Home Savings & Loan Association of Missouri, wherein H. J. Simmons was interpleaded as a party defendant. From a judgment for the interpleader, the plaintiff appeals.

Affirmed.

R. H. Davis, of Joplin, for appellant.

A. E. Elliott, of Nevada, for respondent.

FULBRIGHT, Judge.

This suit was instituted September 27, 1937, in the Circuit Court of Jasper County by petition filed by plaintiff against the Farm and Home Savings and Loan Association of Missouri, the purpose of which was to recover the withdrawal value of certain shares of stock issued by said association to Charlotte Lamb and assigned and pledged by her to plaintiff to secure a loan of $700 evidenced by her promissory note for that amount. Defendant answered by a bill of interpleader alleging that H. J. Simmons acquired the stock at execution sale and had demanded that same be transferred to him and that he be paid the withdrawal value of said stock. H. J. Simmons, interpleader, alleged, among other things, that he acquired the stock at judicial sale under an execution issued on a judgment in favor of the Moberly Trust Company against Charlotte Lamb; that plaintiff stood by and failed to claim any interest in the stock at such sale; that his silence fraudulently induced the interpleader to become the purchaser thereof for value and without notice; and that plaintiff is estopped to assert any claim, title, or interest therein. Plaintiff by his cross-bill alleged he was the owner of the stock by reason of its transfer to him as collateral security to a loan made by Charlotte Lamb for $700, and that interpleader was negligent in not making inquiry of Charlotte Lamb as to her ownership of said certificates of stock. The trial resulted in a judgment in favor of interpleader H. J. Simmons, from which judgment plaintiff appeals.

Respondent strenuously insists that the appeal should be dismissed for the reason that appellant's motion for a new trial does not specifically assign any error committed by the trial court and that consequently there is nothing before this court on appeal. While the motion for a new trial may merit criticism, we think the allegation, "There is no evidence in the case upon which to base an estoppel as ruled by the court," is sufficient. It is true the other assignments are honeycombed with generalities and fail to call the trial court's attention to any specific error, yet since this is an equity case and tried de novo in this court, respondent's motion to dismiss the appeal is overruled.

The facts are substantially as follows: On March 25, 1937, J. H. Lamb, husband of Charlotte Lamb, was indebted to plaintiff for money previously loaned him; that on said date Mr. and Mrs. Lamb borrowed a further sum of plaintiff which brought the debt to $700 for which Balding took a note signed by them. At the same time Charlotte Lamb pledged the Savings and Loan stock to Balding as security for the loan. The certificates had been issued to Mrs. Elizabeth Kerr whose administrator on or about March 25, 1937 assigned them to Charlotte Lamb. On the same day Charlotte Lamb assigned the certificates in blank. About two or three months later the certificates were sent to the Farm and Home Savings and Loan Association and transferred on the books from the estate of Elizabeth Kerr to Charlotte Lamb. The certificates were not transferred from Charlotte Lamb for the reason that plaintiff did not know whether they would be placed in his name or in the name of his brother. There is a provision in the face of the certificates that no transfer is valid until made upon the books of the association.

Levy was made under a general execution issued by the Clerk of the Circuit Court of Jasper County under judgment rendered against Charlotte Lamb April 17, 1937, in favor of the Moberly Trust Company, by O. H. Moberly, Commissioner of Finance, seizing all her right, title and interest in said stock. The Farm and Home Savings and Loan Association by registered letter dated August 11, 1937, notified Charlotte Lamb at Webb City of these matters, and she gave the letter to plaintiff on or before August 29, 1937. A letter dated August 30, 1937, under the signature of Frank Balding, Trustee, was sent to Farm and Home Savings and Loan Association, Nevada, replying to the letter of August 20 addressed to Charlotte Lamb in which he stated that the certificates in controversy were in his possession and asked what action he should take to protect his interest. This letter was received by the...