Bank of Williamstown v. Hiller

• Decision Date: 02 December 1924
• Docket Number: No. 18647.,18647.
• Citation: 266 S.W. 1031
• Parties: BANK OF WILLIAMSTOWN v. HILLER et al.
• Court: Missouri Court of Appeals

266 S.W. 1031

BANK OF WILLIAMSTOWN v. HILLER et al.

No. 18647.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Suit by the Bank of Williamstown against Charles Hiller and another. Decree for plaintiff, and defendants appeal. Affirmed.

Charles Hiller and T. L. Montgomery, both of Kahoka, for appellants.

Hilbert & Henderson, of Monticello, and B. L. Gridley, of Kahoka, for respondent.

NIPPER, C.

This is a suit in equity to enjoin the foreclosure sale of certain real estate located in Clark county, and to reform two deeds of trust given by Wilford Prickett and Sadie Prickett, his wife, on a tract of land. One deed of trust was given to the plaintiff bank, and the other to Mary Prickett, an aunt of Wilford. The petition asked that the plaintiff's deed of trust be declared a first lien on the real estate described in the petition. The court decreed that the plaintiff's deed of trust be declared a first lien. From this order and judgment defendants appealed.

The defendant Hiller was the trustee named in the deed of trust given to secure the payment of a note given by Wilford and Sadie Prickett to the plaintiff bank, for $3,180. The defendant Morrison is administratrix of the estate of Mary Prickett, who died subsequent to the execution of the two deeds of trust in question, and prior to the institution of this suit. The deed of trust given to Mary Prickett was for $1,720. Both deeds of trust were executed the same day, and filed for record at the same time. It appears that this transaction, which resulted in the bringing of this suit, was brought about in the following manner:

Wilford Prickett desired to purchase certain land from his aunt, Mary Prickett. He and his wife, Sadie Prickett, went to the plaintiff bank for the purpose of borrowing $3,180, which amount of actual cash was necessary for Wilford Prickett to pay his aunt in order to consummate the deal. This, it seems, did not include all the purchase price. There was $1,720 additional which his aunt was to receive. Wilford Prickett had the officers of the bank prepare a note and, deed of trust for $3,180, which he was borrowing from the bank. He also had prepared the note and deed of trust for $1,720, payable to his aunt, Mary Prickett. Both deeds of trust were executed on the same day. Wilford Prickett then took the two deeds of trust to Kahoka, in Clark county, and delivered them to the recorder of deeds, who filed them on the same day and at the same hour. There was no mention made in either of these deeds of trust as to whether or net one was to take precedence over the other. Mary Prickett was not present at the time of the execution of these notes and deeds of trust. There is nothing to indicate that the officers of the bank had any dealings at any time with Mary Prickett.

The question which brings this case here is on the admission of certain testimony at the trial of this case. Wilford Prickett was permitted to testify on behalf of plaintiff, over the objections and exceptions of defendant's counsel, that he took this money which he had borrowed at the bank and paid off the indebtedness that his aunt owed; that his aunt wrote him that she would take a second mortgage for the balance of $1,720; that the deed of trust given to his aunt was a second deed of trust.

Counsel for appellants contend that the admission of the testimony of Wilford Prickett as to what his aunt had told him about taking a second deed of trust, and that the deed of trust which he gave his aunt was in fact a second deed of trust, is error, for which this case should be reversed. Of course, Wilford Prickett would not be an incompetent witness for all purposes merely because his aunt,...