Belcher v. Haddix

• Decision Date: 07 December 1931
• Docket Number: No. 17343.,17343.
• Citation: 44 S.W.2d 177
• Parties: BELCHER v. HADDIX et ux.
• Court: Missouri Court of Appeals

44 S.W.2d 177

BELCHER v. HADDIX et ux.

No. 17343.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from Circuit Court, Bates County; W. L. P. Burney, Judge.

"Not to be officially published."

Action by Jennie Belcher against S. L. Haddix and wife. From judgment for plaintiff, defendants appeal.

Affirmed.

A. E. Elliott, of Nevada, Mo., for appellants.

D. C. Chastain and Howell H. Heck, both of Butler, for respondent.

BOYER, C.

This is an equitable proceeding to establish a vendor's lien for an unpaid part of the purchase price of plaintiff's property conveyed to defendants under an agreement to exchange properties. The petition alleges that she was the owner of certain real estate; that defendants, husband and wife, were owners of other real estate, all in the city of Rich Hill; that the parties agreed to exchange their properties, and that defendants agreed to pay plaintiff the sum of $335 in said exchange, and in pursuance of said agreement plaintiff conveyed her property to defendants by proper deed, which was accepted; that defendants conveyed their property to plaintiff, but have failed and refused to pay the sum of money agreed upon; that plaintiff is without adequate remedy at law, and prays the court for its judgment of a vendor's lien against the property so conveyed by plaintiff and for a foreclosure thereof; and that the court will adjudge its priority as to other incumbrances.

The answer admits that plaintiff and defendants exchanged real estate by proper deeds, denies each and every other allegation, and states that the sum of money alleged to be due plaintiff was paid to and accepted by plaintiff's agent.

The evidence discloses that one Hoover was the joint agent of plaintiff and the defendants in the negotiations and execution of their contract for the exchange of properties; that he expected and received a commission from both sources. After the deeds were executed, Hoover delivered plaintiff's deed to defendant S. L. Haddix, who at the time delivered the deed of the defendants to Hoover for the plaintiff, and at the same time delivered a check payable to Hoover in the sum of $335, drawn upon his account in the F & M Bank at Rich Hill. The parties were then in the bank. Hoover indorsed the check and delivered it to the cashier as a deposit, and received credit for the amount of the check in his pass book. Haddix had to his credit in said bank more than enough to meet the check, but his account was not charged with this check; neither was Hoover's account credited with the amount of the check on the records of the bank. This was on August 26, 1930, and, when the bank closed that day, it was never reopened, but passed into the hands of the finance commissioner for liquidation on the following day, and some time thereafter the check in question was returned by the finance commissioner to Hoover, and he received no money or payment thereon. On the afternoon of the day Hoover received the check, he gave plaintiff his check drawn against his deposit in said bank for the amount due her. The check was never presented or paid, and Hoover never agreed to pay plaintiff on his own account.

It appears that there was a deed of trust upon plaintiff's property to secure the sum of $125 and interest which was to be paid out of the sum defendants agreed to pay plaintiff,...