Bowers v. Walker
| Decision Date | 22 November 1915 |
| Citation | 182 S.W. 116,192 Mo.App. 230 |
| Parties | ALCID BOWERS, Respondent, v. H. L. WALKER and JOSEPH G. RANGER, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
AFFIRMED.
Judgment affirmed.
George W. Eastin, K. B. Randolph, Gabbert & Mitchell for respondent.
W. H Haynes, J. N. Walker and W. K. Amick for appellants.
--Action for malicious prosecution. The petition alleges that defendants "maliciously conspiring together and contriving and intending to injure him in his good name and fame and reputation" procured the arrest, imprisonment and prosecution of plaintiff without reasonable and probable cause for an alleged violation of section 4569, Revised Statutes 1909, which provides "every person who shall make, execute or deliver any deed . . . for the conveyance . . of any lands . . . which he had previously, by deed or writing sold, conveyed, mortgaged or assured . . . to any other person, such first deed being outstanding and in force and shall not in such second deed . . . recite and describe such former deed . . . with intent to defraud, and any person who shall knowingly take or receive such second deed . . . shall, if the property be of the value of fifty dollars or more, on conviction be adjudged guilty of a felony," etc.
The defendants answered separately. The answer of defendant Walker being a general denial and that of Ranger a general denial followed by allegations of probable cause and that the prosecution was begun in good faith on the advice of counsel to whom the facts of the case were fully disclosed. A trial of the issues raised by the pleadings resulted in a verdict for plaintiff in which his compensatory damages were assessed at $ 5000. After unsuccessfully moving for a new trial and in arrest of judgment, both defendants appealed.
In 1908, plaintiff who is a practicing lawyer in St. Joseph became the owner of certain real estate in that city which he purchased subject to a deed of trust for $ 900, and to a lien of certain special taxes, and which he further encumbered with a second deed of trust executed by him and his wife, to secure a loan made to him by Joseph Hoblitzell. On November 10, 1910, plaintiff sold the property thus encumbered to Flora D. Hadley, a married woman, who was represented in the transaction by her husband. The deed from plaintiff to Mrs. Hadley recited that the conveyance was made subject to the liens of the first deed of trust and of the special taxes, but did not mention the second trust deed. Six days after she purchased the property Mrs. Hadley sold and conveyed it to defendant Ranger, subject to the first two liens and in consideration of the payment of $ 200. Her deed to Ranger did not refer to the second deed of trust, and Ranger claims he did not know of the existence of that lien until some time after the sale, when Hoblitzell threatened to foreclose. Afterward, the trustee for Hoblitzell sold the property under the deed of trust. Plaintiff attended the sale and bid a sufficient sum to cover the encumbrance but someone representing defendants overbid him and became the purchaser. We quote from the testimony of Ranger:
Plaintiff testified: "I bid the amount of my obligation and when I bid the amount of my obligation I quit, and then they bid higher than me and they got it." Further he testified that defendant sued him in a justice court to recover the amount still due on the Hoblitzell loan, and that he defended the case and won on the ground that that cause of action did not inure to defendants but to Mrs. Hadley.
Before conveying to Mrs. Hadley, plaintiff delivered to her husband an abstract of title disclosing the fact that a second deed of trust had been executed, acknowledged and recorded, and it appears from the evidence of plaintiff that in the sale of the property he informed Mr. Hadley of the existence of that lien and agreed to pay the remainder of the loan which it secured. Plaintiff states that in omitting mention of that encumbrance in the deed to Mrs. Hadley, he had no intention to defraud or mislead the grantee, to whose agent he imparted full information respecting the title, and that he acted on the supposition that it was not necessary to mention a lien which the contract of sale required him to discharge.
The evidence is voluminous and we shall not go into its details. More than a year elapsed after the purchase of the property by Ranger before he and Walker applied to the prosecuting attorney for the arrest and prosecution of plaintiff. It appears that Walker had a pecuniary interest in the transaction and that he and Ranger became involved in a series of disputes with plaintiff which finally culminated in their application to the prosecuting attorney for the arrest and prosecution of plaintiff for a violation of the provisions of the statute.
Defendants first consulted an attorney who advised them that plaintiff had violated the statute and, afterwards, they had an interview with one of the assistant prosecuting attorneys to whom they made a statement of the case with the request that plaintiff be prosecuted. They exhibited the deeds from plaintiff to Mrs. Hadley and from her to Ranger, but did not inform the assistant that Mrs. Hadley had accepted the deed from plaintiff with full knowledge of the Hoblitzell lien. The assistant would not proceed as requested without further investigation, and after the interview was closed, he had a conversation with plaintiff who gave his version of the transaction, from which it appeared that the Hadleys (who, in the meantime, had removed to Florida) had purchased the property with knowledge of the Hoblitzell lien, under an agreement that plaintiff would discharge that lien. Defendants saw the assistant prosecutor three or four times after this and urged him to proceed, but he refused on the ground that "if anybody was guilty, it looked like Mrs. Hadley was guilty for not having mentioned the deed of trust." Further it appears from plaintiff's testimony that defendants were in possession of the abstract of title which plaintiff had delivered to Hadley and which showed the Hoblitzell deed of trust.
Finding they could not induce him to act, defendants called upon another assistant of the prosecuting attorney and stated the case to him without apprising him of the knowledge the Hadleys had of the Hoblitzell lien at the time they purchased the property. He concluded from their statement of facts and from an inspection of the documentary evidence they exhibited that a crime had been committed by plaintiff and instituted a criminal prosecution against plaintiff upon the affidavit and complaint of defendant Ranger, in which it was charged that plaintiff "did not in said second and last deed, so made as aforesaid, recite nor describe said former and first-mentioned deed, nor the substance thereof, with intent to defraud the said Flora D. Hadley." Plaintiff was arrested and lodged in jail where he remained half an hour when he was released on bond. On the day set for the preliminary hearing the prosecutor dismissed the proceeding for the reason, as he states: "Because I had made further investigation after it was issued and came to the conclusion that it should not be prosecuted."
Following the dismissal of the case plaintiff brought this suit for the recovery of compensatory damages. At the close of the evidence each defendant requested the court to give a peremptory instruction but these requests were refused and the cause was submitted to the jury.
Among the instructions given at the request of plaintiff were the following: (1) "That if you believe and find from the evidence that the defendants willfully maliciously and without probable cause, acting together, did cause the warrant introduced in evidence to be issued out of the justice court of Daniel N. Nies, who was then and there a justice of the peace of Washington Township, Buchanan county, Missouri, and in pursuance of such common purpose, if you believe and find from the evidence that the defendants did act with a common purpose to cause said warrant to be issued, the defendant Joseph G. Ranger, made an affidavit before Daniel N. Nies, the aforementioned justice of the peace, and that pursuant to such common purpose between said defendants, the said defendant Joseph G. Ranger, did maliciously and falsely and without probable cause charge in such affidavit the plaintiff with having fraudulently omitted to mention a certain deed of trust for three hundred dollars to Edward Pinkston, as trustee, with Joseph Hoblitzell as beneficiary named therein, which said deed of trust was of date the 10th day of December, 1908, and which said last mentioned deed was offered in evidence by the defendants, and which said affidavit further charged that said omission was made with the purpose of defrauding one Flora D. Hadley, mentioned in evidence, and that further said defendants acting together with a common purpose did willfully, falsely and maliciously and without probable cause procure and cause thereon the arrest of the plaintiff herein upon said affidavit and complaint, and the warrant issuing upon such affidavit and complaint and did by reason thereof cause plaintiff to be taken by the constable of said Washington Township, Buchanan county, Missouri, before the aforesaid justice of the peace, Daniel N. Nies, and did by reason thereof and as a consequence thereof cause plaintiff to be arrested and deprived of his liberty and committed to the common jail of Buchanan county,...
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