Booher v. Allen
| Decision Date | 05 February 1900 |
| Parties | BOOHER et al., v. ALLEN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.
Affirmed.
W. G Hine, P. Mercer and Davis, Ensor & Davis for appellant.
(1) Even if the deed of trust was legally void for want of delivery, it was intended by the parties to be a mortgage, or lien on the land, and it was an equitable mortgage, and appellant bought it as such, and his rights against Ensor, or against these plaintiffs who claim Ensor's title, are the same in equity that they would be if the mortgage was legally perfect. Martin v. Nixon, 92 Mo. 26. (2) The quit claim deed of Heren to Witten at Ensor's request conveyed Ensor's interest in the land only, leaving it subject to any equities or claim that Mary E. Martin may have had to it, just as if no conveyance had been made. It could not injure, delay or defraud her. Mann v. Best, 62 Mo. 491; Phoenix Ins. Co. v. Landis, 50 Mo.App. 116; Stoefel v. Shroeder, 62 Mo. 147; Eoff v Irvine, 108 Mo. 378. (3) Ensor had a right to sell any of his property to pay his debts. Dougherty v. Cooper, 77 Mo. 528; Osborn v. Robinson, 80 Mo. 541; Singer v. Goldenberg, 17 Mo.App. 549; Schroeder v. Bobbett, 108 Mo. 289; Larabee v. Franklin Bank, 114 Mo. 592; Baker v. Harvey, 133 Mo. 653; Gens v. Hargadine, 56 Mo.App. 245. (4) Appellant Allen would not be affected by any fraud in the conveyance unless he had knowledge or notice of it. Dougherty v. Cooper, 77 Mo. 528; Durkee v. Chambers, 57 Mo. 575; Henderson v. Henderson, 55 Mo. 534.
Henry S. Kelly and Booher & Williams for respondents.
(1) Written conclusions of fact found by the court are in the nature of a special verdict, and where there is evidence tending to establish the facts so found, the Supreme Court will not disturb them if the conclusions of law are correct. Freeman v. Moffit, 119 Mo. 280; Lumber Co. v. Mining Co., 78 Mo.App. 681; Nelson v. Railroad, 66 Mo.App. 647; Griffith v. Construction Co., 46 Mo.App. 539; Freeman v. Moffit, 135 Mo. 288; Blount v. Spratt, 113 Mo. 48; Rannells v. Isgrigg, 99 Mo. 28; Leedom v. Dickens, 80 N.W. 94; Bank v. Newkirk, 144 Mo. 481. (2) If a person who is insolvent or in failing circumstances purchase property with his own money and has it conveyed by his vendor to a third party the conveyance is fraudulent, and as to creditors it is as if it had never been. Henderson v. Dickey, 50 Mo. 164; Howe v. Wyssman, 12 Mo. 169; Lillard v. Shannon, 60 Mo. 522; Gamble v. Johnson, 9 Mo. 598. (3) Where the person expressed as payee in the note and as mortgagee in an accompanying mortgage never had any knowledge of or interest in the transaction and such instruments were never delivered to him or any one authorized by the mortgagee to receive them, but were delivered to another, such instruments are void for want of a legal delivery. Shirley v. Burch, 18 P. 351; 1 Jones on Mort., sec. 86; Clark v. Bank, 66 F. 404; Rogers v. Heads Iron Co., 70 N.W. 527; Barnes v. Cox, 79 N.W. 550; Alliance Milling Co. v. Eaton, 25 S.W. 618; Kuh v. Garvin, 125 Mo. 563; Burke v. Adams, 80 Mo. 618; Craves v. Rositter, 116 Mo. 338; Hammerslough v. Cheathem, 84 Mo. 13; Tiedeman on Commercial Paper, sec. 294; Gibson v. Miller, 29 Mich. 355. (4) Positive knowledge and knowledge of facts which put a person upon inquiry are both actual notice. Hill v. Tissier, 15 Mo.App. 299; Maloney v. Bacon, 33 Mo.App. 50. (5) The deed of trust to Brockett as beneficiary, never having been delivered to him, nor to any one authorized by him to receive it, is void for want of a legal delivery. 1 Jones on Mort., sec. 86; Shirley v. Burch, 16 Ore. 83; 2 Pingrey on Real Property, sec. 792; 1 Devlin on Deeds, sec. 260; Goodwin v. Owen, 55 Ind. 243. (6) Appellant purchased this note more than three months after the first coupon interest note matured, which latter has not yet been paid; and hence appellant is charged with notice of all the facts and circumstances surrounding the issue of the paper which made the note absolutely void in his hands. Piersol v. Shelley, 42 P. 922; Owens v. Evans, 31 N.E. 999; Tiedeman on Commercial Paper (1 Ed.), sec. 297; Chouteau v. Allen, 70 Mo. 339; Kelley v. Keeshaw, 92 Mo. 614; Agan v. Shannan, 103 Mo. 669; Miller v. Muir, 105 Mo. 428.
This is a proceeding in equity to set aside certain deeds and a deed of trust upon land in Andrew county, on the ground that they are frauds.
Stated in the order of their occurrence the facts are as follows:
On the 26th of May, 1891, Lydia L. Baker owned three hundred and ninety acres of land. She was an old lady and had two children, Mary E. Martin and Martha A. Baker. William Heren and Thomas H. Ensor, partners, were her attorneys, as they were also the attorneys of her daughter Martha. Thomas H. Ensor and William B. Allen, the defendant, were partners in the business of abstractors of titles, and the two firms, so composed, had offices together. On said date Lydia L. Baker conveyed two hundred and seventy acres of said land (with all her personal property) to Martha A. Baker. It is charged that this deed was procured by the fraud, deceit and undue influence of Martha A. Baker and of Heren & Ensor, her said attorneys. On the same date, by alleged similar means, Lydia L. Baker conveyed to William Heren (but in reality for Heren & Ensor) the remaining one hundred and twenty acres. Heren at the same time executed to Martha A. Baker a defeasance to said land, agreeing to account to her for the land. Lydia L. Baker died intestate as to the land on the 27th of December, 1891.
About the 22d of January, 1892, Martha A Baker surrendered to Heren & Ensor the defeasance and in consideration therefor they agreed to defend all suits that might be brought against her to set aside the transfers of said real and personal property by her mother to her.
On the same day (January 22, 1892), Heren, by quitclaim deed, conveyed the one hundred and twenty acres to James D. Witten for an alleged consideration of $ 3,600, but in fact the conveyance was voluntary and without consideration. Allen, the defendant, took the acknowledgment to the deed, as a notary public.
On the same day (January 22, 1892), James D. Witten executed his note for two thousand dollars payable two years after date, with eight per cent interest per annum, to Justus W. Brockett, or bearer, and secured the same by a deed of trust upon the one hundred and twenty acres. D. D. Burnes was named as the trustee in the deed. But neither the note nor deed of trust was ever delivered to either Brockett or Burnes, and neither of them knew anything about it. There was a person named Justus W. Brockett, but he never knew anything of the transaction and never loaned Witten any money. Burnes refused to have anything to do with the matter or to act as trustee as soon as he heard of it. The note and deed of trust were delivered to Thomas H. Ensor, and were by him used and negotiated as hereinafter stated. On the same day Witten deeded the land to Ensor's wife, for an alleged consideration of $ 2,600, but in fact there was no consideration therefor.
On the 16th of February, 1892, Mary E. Martin instituted suit against Martha A. Baker seeking to have the deed to the two hundred and seventy acres set aside, and filed a proper lis pendens, which the defendant Allen saw and made a record of.
Not having correct information as to the deed of trust from Witten to Brockett for $ 2,000, and believing that Brockett had loaned the money evidenced by that note and secured by that deed of trust, in good faith and without notice of her rights, Mary E. Martin did not sue to set aside the deed from her mother to Heren, or the deed from Heren to Witten or the deed of trust from Witten to Brockett, but brought suit against Heren and Ensor to recover the value of her interest in the one hundred and twenty acres. This suit resulted on the 9th of March, 1894, in a judgment in her favor and against Ensor for fourteen hundred dollars, and on the 19th of July, 1895, the one hundred and twenty acres were sold by the sheriff under an execution, to satisfy said judgment, and the plaintiffs, Booher and Williams, became the purchasers thereof.
In the meantime, however, Ensor, at a time not disclosed by this record, pledged the note and mortgage to the National Bank of St. Joseph, as collateral security for a loan of $ 2,000 by the bank to him. Thereafter, at a time also not disclosed, Ensor obtained the note and mortgage from the bank, but whether by paying the loan for which they were collateral, or in what manner, is not shown. Thereafter on the 4th of October, 1894 (which was eight months and twelve days after the note became due), Ensor negotiated the note and transferred the mortgage to the defendant, Allen, and received from him therefor a check for two thousand dollars drawn on the State Bank of Savannah, and payable to the order of W. Aaron Kohl or bearer. Kohl knew nothing about this check or transaction and never received the check or the money. But Ensor collected the check and disposed of the proceeds for his own benefit, by paying between seventeen and eighteen hundred dollars, which he owed, to the bank, for which defendant, Allen, was security, and by having the remainder deposited to his credit in the bank. On the 14th of January, 1895, Ensor's wife conveyed the land, subject to the deed of trust, to defendant Todd, but as the mortgage was afterwards foreclosed Todd's title was cut out and he disclaims any interest in this land, and hence is practically out of this case.
Thus matters stood until in the fall of 1895, nearly a year after Mrs. Martin had obtained her judgment against Ensor, and several months after the plaintiffs had acquired...
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