Bank of Hartsburg v. Sapp.

• Decision Date: 11 June 1934
• Docket Number: No. 18081.,18081.
• Parties: BANK OF HARTSBURG, APPELLANT, v. MARGARET A. SAPP ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

73 S.W.2d 294

BANK OF HARTSBURG, APPELLANT, v. MARGARET A. SAPP ET AL., RESPONDENTS.

No. 18081.

Kansas City Court of Appeals. Missouri.

June 11, 1934.

Appeal from Circuit Court of Boone County. — Hon. W.M. Dinwiddie, Judge.

AFFIRMED.

Harris, Price & Alexander for appellant.

William H. Sapp for respondent.

REYNOLDS, C.

This cause originated in the Circuit Court of Boone County. The petition was filed January 23, 1928, by the appellant as the plaintiff therein. The respondents, Margaret A. Sapp, Simeon Efton Sapp, Elfrey N. Sapp, Ethel F. Griffin, J.D. Sapp, Josephine Wilson, and Elfrey N. Sapp, administrator of the estate of E.H. Sapp, deceased, were made parties defendant therein. A demurrer to the petition was filed by the respondents, challenging it as failing to state facts sufficient to constitute a cause of action, which was by the court sustained at the April term of the court, 1933; and thereafter, at the June term of the court, the appellant having declined to plead further, the court found the issues for the respondents and rendered final judgment for the dismissal of the petition and for respondents for costs. From such judgment so rendered, appellant prosecutes this appeal.

The petition speaks for itself and is as follows:

"Plaintiff states that it now is, and was at all times herein mentioned, a banking corporation organized and existing under and by virtue of the laws of the State of Missouri and as such is capable of suing and of being sued in all the courts of this State.

"Plaintiff for cause of action states that one E.H. Sapp, now deceased, did on the 16th day of March, 1923, by his certain promissory and negotiable note of that date promise, for value received, to pay to the plaintiff or order the sum of $2,000, payable one year after date and bearing interest at the rate of seven per cent per annum from date thereof until paid.

"That no part of the principal of said note has been paid and that interest on said note has been paid to September 16, 1932.

"That said E.H. Sapp died intestate on the 2nd day of December, 1931, leaving the defendants Margaret A. Sapp, Simeon Efton Sapp, Elfrey N. Sapp, Ethel F. Griffin, J.D. Sapp, and Josephine Wilson as his sole and only heirs at law, the defendant Margaret A. Sapp being his widow with no minor children.

"That on the 18th day of March, 1932, plaintiff presented to the Probate Court of Boone County, Missouri, for allowance, its claim against the estate of the said E.H Sapp on said note and on the 20th day of May, 1932, said claim was by said probate court allowed against the estate of the said E.H. Sapp in the sum of $2,000 with interest at the rate of seven per cent per annum from the 16th day of September, 1931, and same was classified as a fifth class claim. In this connection plaintiff states that since said date interest has been paid on said sum to the 16th day of September, 1932, and said allowed claim should be credited with interest to said date, September 16, 1932.

"That after the payment of the first and second class claims allowed against said estate there was not sufficient personal property in said estate to pay all or any part of said claim, and that the principal amount of said note or of said claim has not been paid, and that there is still due on said claim and note the sum of $2,000 together with interest from the 16th day of September, 1932.

"That the said E.H. Sapp, at the time of his death, was seized and possessed of the following described real estate, to-wit:

"The south half (S½) of the southwest quarter of section 7, the northeast quarter of the northeast quarter of section 18, and the east half of the southeast quarter of the northeast quarter of section 18, all in township 46, range 12, Boone County, Missouri.

"That during the August, 1932, term of the Probate Court of Boone County, Missouri, the defendants Margaret A. Sapp, Simeon Efton Sapp, Elfrey N. Sapp, Ethel F. Griffin, J.D. Sapp, Josephine Wilson and Elfrey N. Sapp, administrator of the estate of Elisha H. Sapp, deceased, brought an action in said probate court against the plaintiff herein to have commissioners appointed by said court to set off the above described real estate as the homestead of the defendant Margaret A. Sapp, and the said probate court did, during said August, 1932, term of said court appoint commissioners to set out and admeasure the homestead interest of the said Margaret A. Sapp in said real estate. That said commissioners did, pursuant to the order of said probate court, set out and admeasure the homestead interest of the defendant Margaret A. Sapp in said real estate and filed a report with said probate court setting out and admeasuring all the above described real estate as the homestead of the said Margaret A. Sapp.

"Plaintiff states that it is entitled to have said claim against said estate to be declared a lien against said real estate, subject only to the homestead interest of the said Margaret A. Sapp, but that plaintiff has no adequate remedy at law in that it cannot compel a sale of said real estate subject to the said homestead interest for the payment of the debts of said estate and cannot have execution levied against said real estate and have same sold subject to said homestead interest commuted into money without the constent of the said Margaret A. Sapp.

"That in order that plaintiff's rights in the premises be protected and preserved it is necessary that plaintiff's claim against said estate be declared a lien upon said real estate, subject to the homestead interest of the said Margaret A. Sapp, and that said lien be preserved until the death or remarriage of the said Margaret A. Sapp, at which said time plaintiff to be entitled to have execution issue against said real estate and have same sold to satisfy said debt and costs of said sale.

"Wherefore, plaintiff prays the court by its order, judgment and decree to declare that the claim of the plaintiff against the estate of E.H. Sapp, deceased, in the sum of $2,000 with interest thereon at the rate of seven per cent (7%) per annum from the 16th day of September, 1932, be a lien against the real estate above described, subject only to the homestead interest of the defendant Margaret A. Sapp, and that said lien be preserved until the death...