Barth v. Haase

• Decision Date: 07 May 1940
• Docket Number: No. 25300.,25300.
• Parties: BARTH et al. v. HAASE et al.
• Court: Missouri Court of Appeals

139 S.W.2d 1058

BARTH et al. v. HAASE et al.

No. 25300.

St. Louis Court of Appeals. Missouri.

May 7, 1940.

As Modified on Denial of Rehearing May 21, 1940.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be reported in State Reports."

Action by Etta Barth and another against William Haase, trustee, wherein the trustee on an order of interpleader deposited money in court and Etta Barth and another and the Jefol Investment Company filed their respective claims for the fund. After the trial the Jefol Investment Company was caused to be liquidated and its assets were transferred to William H. Biggs, as special deputy commissioner of finance in charge of the Laclede Trust Company, successor to the Jefol Investment Company. From an adverse judgment, Etta Barth and another appeal.

Affirmed.

Barker, Durham & Drury and J. M. Brown, all of St. Louis, for appellants.

Barak T. Mattingly and Harry Richards, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

The appeal is from a final decree, awarding to respondent funds paid into court by one William Haase, trustee, on an order of interpleader. Pursuant to the order the original plaintiffs, Etta and Diana Barth (appellants), and the Jefol Investment Company (respondent), filed their respective claims or interpleas for the fund.

After the trial in the circuit court and the appeal to this Court the Jefol Investment Company, a Missouri corporation, was caused to be liquidated in connection with the Laclede Trust Company, a banking corporation, and its charter was revoked and its assets transferred to William H. Biggs, special deputy commissioner of finance in charge of the Laclede Trust Company, a banking corporation; and it was stipulated by the parties that the cause be abated as to Jefol Investment Company and revived in the name of William H. Biggs, special commissioner in charge of the Laclede Trust Company.

On September 16, 1926, Mrs. Pearl Schildkret, the record owner of the real estate, from the sale of which this controversy arises, executed a deed of trust to William Haase, trustee, Charles H. Wahlbrink, beneficiary, to secure a principal note of $7,500. Under foreclosure sale held on January 13, 1931, the property was sold to Jefol Investment Company for $12,100. After payment of the debt secured and costs of foreclosure a balance of $3,401.86 was left in the hands of the trustee. The trustee, being sued by plaintiffs herein for this balance, sought interpleader, which was granted, and the trustee under order of court paid into the registry of the court said sum of $3,401.86, and was finally discharged, an allowance being made to him for his attorney's fee in the sum of $300.

Thereafter, by order of court plaintiffs filed their interplea claiming the fund, as likewise did Jefol Investment Company. The history of the transactions of record out of which the two claims arise is as follows:

On the same day as the execution of the $7,500 deed of trust, Mrs. Pearl Schildkret also executed a deed of trust to William Haase, trustee, Charles H. Wahlbrink, beneficiary, to secure the payment of a debt of $4,000, represented by 32 notes for $125 each. This was a lien second to the $7,500 lien, and was satisfied of record on May 6, 1927.

On May 3, 1927, Mrs. Pearl Schildkret, by quit claim deed, conveyed the property to Diana Barth and Etta Barth, which conveyance, of course, was subject to the two deeds of trust securing $7,500 and $4,000, which were then owned respectively by the Laclede Trust Company and Jefol Investment Company, the $4,000 debt having been reduced to $3,125.

Shortly prior to May 5, 1927, Diana Barth and Etta Barth, their husbands acting for them, entered into negotiations with a real estate agent named Abernathy for the sale of the property to one George Rice; and on May 5, 1927, the Barths conveyed the property to George Rice by warranty deed, the recited consideration being "the sum of $100 and other valuable considerations," and the deed containing the following words, "subject to deeds of trust now of record." This deed was dated and acknowledged on May 5, 1927, and was filed for record on May 6, 1927 at 10:44½ o'clock a. m.

On the same day May 5, 1927, George Rice executed a deed of trust to Maurice Hyman, trustee, Etta Barth and Diana Barth, beneficiaries, covering the same property and containing a recital that "whereas, the said George Rice, party of the first part is justly indebted to the parties of the third part for part purchase money in the sum of $3750," for which the deed of trust was executed. This deed of trust was filed for record on May 6, 1927, at 11:22 o'clock a. m., and is the source of appellants' claim in this case,—the balance due thereon being $3,216.43 principal and interest to January 13, 1931.

On the same day, May 5, 1927, George Rice executed a deed of trust to William Haase, trustee, Charles H. Wahlbrink, beneficiary (Wahlbrink acting as agent for Jefol Investment Company), covering the same property, and reciting that it was "subject to a prior deed of trust securing $7500 and interest." And this deed of trust contained the further recital, "whereas, the said party of the first part, being justly indebted to the party of the third part for money advanced towards the purchase price of said property in the sum of eleven thousand and no/100 dollars, to secure which, together with interest thereon" he had executed 29 notes, the same being described therein. This deed of trust was filed for record May 6, 1927, at 10:45 o'clock a. m. It was foreclosed and the property sold on October 7, 1930, to one Edgar A. Krieger, who thereupon conveyed the property to Jefol Investment Company. And the title thus obtained is the source of respondent's claim in this case.

The Jefol Investment Company claim the fund impounded on the theory that the $3,750 deed of trust of appellants, being of record subsequent to its $11,000 deed of trust was extinguished by the foreclosure of the $11,000 deed of trust whereby it obtained title to the property, and the trial court so held.

The Barths claim the fund on the theory that although their $3,750 deed of trust was actually filed for record subsequent to the $11,000 deed of trust, it was and is entitled to priority for the reason that it represents a part of the purchase price of the property, and so shows on its face, and that the Jefol Investment Company had knowledge that the entire purchase price had not been paid by Rice when the $11,000 deed of trust was executed and accepted by it.

An interpleader suit involves two successive litigations, one being the question whether or not the parties named as claimants shall interplead, and the other being between the respective claimants. The subject of these two litigations are separate and distinct and therefore require separate and distinct allegations and proof. In this case the trial court properly first determined whether the defendant William Haase, trustee, should prevail on his answer praying for an interpleader, and the court having determined that issue in favor of the interpleader, Haase paid the fund into court and was discharged. The court ordered the two claimants to interplead. Each did so, and each clearly stated their claim, and on such interpleas the issues were joined. The interplea of Jefol Investment Company specifically set out its claim which was opposed to the claim of Barths and necessarily constituted a denial of their claim. The clear cut issue made by the pleadings between the respective claimants was whether the $3750 lien was entitled to priority over the $11,000 lien. That issue is simplified by the fact that no fraud, misrepresentation or mistake is alleged or proved on either side. It is provided by the Statute (Section 3040, R.S.1929, Mo.St.Ann. § 3040, p. 1880) that every instrument in writing...