Butte Inv. Co. v. Bell

• Decision Date: 04 March 1918
• Docket Number: No. 18859.,18859.
• Citation: 201 S.W. 880
• Parties: BUTTE INV. CO. v. BELL et al.
• Court: Missouri Supreme Court

201 S.W. 880

BUTTE INV. CO. v. BELL et al.

No. 18859.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Butte Investment Company against John F. Bell and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

This is a suit in ejectment, and was instituted in the circuit court of Jackson county by the plaintiff against the defendants to recover the possession of a certain house and lot described in the petition, situate in Kansas City, Mo. The answer consisted of a general denial, and certain defenses designated as equitable, which are not necessary here to mention, save to state that they were sufficient to justify the proof of the facts hereinafter to be mentioned. The reply was a general denial. The trial resulted in a judgment for the plaintiff, and the defendants, after taking the necessary proper steps therefor, duly appealed the cause to this court.

The facts are practically undisputed, and are substantially as follows:

The defendants, John F. Bell and Clara E. Bell, were husband and wife; that on and prior to October 21, 1913, the defendants were the record owners of the title to the real estate mentioned, by the entirety, but as a matter of fact, as shown by practically all of the evidence, Clara E. Bell was the real and sole owner of the property in controversy —that is, she paid the purchase price thereof out of her separate means; and that she and her husband occupied the premises as a homestead ever since the date of its purchase, December 21, 1911. The defendants purchased the property, as before stated, from James 0. Wade, who was a real estate man, for $27,500, and who was also her confidential agent and adviser; that some time before December, 1914, John F. Bell became financially involved, and a judgment for $339.12 had been recovered against him and his wife, the real defendant in this case, and it was expected that numerous other judgments would shortly thereafter be rendered against him alone; that upon the advice of said Wade, and for the purpose of protecting the property in controversy for the wife, and from the creditors of John F. Bell, the latter and his wife conveyed the same to James M. Campbell, a brother-in-law of Wade, with an agreement that the latter was to reconvey the same immediately to the defendant, Clara E. Bell, the real owner thereof, for her sole use and benefit, free and clear from all right, title, interest, and claims of her said husband. Regarding this matter Wade testified:

"Q. Wasn't it agreed between you and she at the time this was instituted that Campbell would immediately deed this property to her? A. Yes. Q. Mr. Wade, the purpose of carrying on this transaction and your advice to her, and following out that advice, was to avoid the claim of any creditors of her husband on her home? A. Yes, sir."

That the property was encumbered with two deeds of trust, one for $10,000 and the other for $6,000. The latter was to secure interest notes given for the interest to become due on the $10,000 debt. One thousand dollars of the interest notes had been paid, but there were others, as well as special and general taxes, and other claims against the property still due and unpaid, aggregating $3,127.99. Under those conditions, Boley, the owner of the notes, advertised the property for sale on July 7, 1914, under the deeds of trust. In order to save something out of the wreck, prompt action had to be taken by Mrs. Bell, so she called upon Mr. Wade, her said agent, for assistance. Others, either in a spirit of friendship or hope of profit, also flocked to her rescue, who made her various propositions, which are unnecessary to be here especially mentioned, as nothing came of any of them. After due consultation with Mr. Bell, and upon his advice, she authorized Mr. Wade to exchange the property in controversy for certain property located on Bales avenue, in Kansas City, which was incumbered for $3,000; both properties to be conveyed subject to the incumbrances mentioned, and the purchaser of the property in controversy was to pay the $3,127.99 before mentioned, which stood against the same, the name of the purchaser not having been disclosed to her at that time. This was on July 6, 1914. That Campbell and wife, instead of having reconveyed the property back to Mrs. Bell as per said agreement, on May 22, 1914, made a warranty deed conveying said property in blank, and delivered the possession of the same to Wade, who held possession of the same until July 6, 1914, at 6:30 p. m., when he inserted the name of the plaintiff, the purchaser, and delivered it in escrow to one Cramer, as will be fully stated hereafter, who was also a real estate agent of Kansas City, and the agent of the Purchaser of the property in controversy that is, he was the agent of both parties to the transaction. The defendant Mrs. Bell testified that she never authorized the Campbells to execute the deed mentioned, never saw it, and never heard of its existence until July 6th, the day the plaintiff's name was inserted in the blank space as grantee of the property. This is practically undisputed, as shown by the following testimony:

"Cross-Examination by Mr. Fyke: Q. I think you stated, Mr. Wade, when this deed was made to Campbell, the understanding was that Campbell was to execute a deed in blank? A. Well, he executed a deed. Q. With the grantee in blank? A. Well, either to her, or in blank, as the case may be. Q. Well, in case it was executed in blank, that was for the reason that if you found a purchaser? A. Yes. Q. It would be more convenient to make a transfer than to have her make a deed? A. Yes. Q. That was the agreement and understanding at the time it was made? A. Not at the time of the execution of the deed to Campbell, but at the time I got the deed back from Campbell the conditions were such then that I deemed it advisable to take the deed in blank. Q. Not take it in her name? A. Not take it in her name for the reason this judgment was on record. Q. There was a judgment at that time against her? A. There was a judgment against both of them; yes."

After Mrs. Bell ascertained these facts, which was on the day before this alleged sale or exchange of properties took place, Mr. Wade testified:

"* * * A. Well, that is all right; at least Mrs. Bell and I had a conference. Mrs. Bell was hysterical. She was on the verge of losing everything she had, and she told me she did not want this deal to go through; and I persuaded her that I thought it was the best thing for her; that even an injunction might not lie; there was no certainty of an injunction stopping the sale; and it would be something that I'd hate to have done, for the reason that I was doing business along the same lines; that it would be too late for the granting of an injunction, and I wished she would do it. Well, she says, `Go on and do the best you can;' and when I left her that was the partiug injunction, that she did not want to do it, and positively won't."

As throwing further light upon this question, Clara E. Bell, one of the defendants, testified as follows:

"Q. Did you purchase that property, the real estate, and have the house built? A. Yes, sir. Q. Whose money? A. My own. Q. Did your husband have any interest in that property? A. No, sir. Q. Mrs. Bell, I will ask you if you executed a deed to one James Campbell, you and your husband? A. Yes, sir. Q. Who prepared that deed and handed it to you for execution? A. Why, Mr. Wade—J. O. Wade. Q. What was the purpose of making that deed— how did you come to do that? A. Why, to save my home, because it was my home. Q. I will ask you if it is a fact that your husband became financially involved a short time before that? A. Yes, sir; he did. Q. Now, I will ask you if you had any arrangements with Mr. Wade at the time you and your husband executed this deed to Campbell with reference to what Wade was to do with it, and what he was to do? A. He was to have Mr. Campbell tender me back the deed signed. Q. To who? A. To Clara E. Bell alone. Q. I will ask you if you had any arrangement about that deed conveying the property to you, so that your husband would have no interest in it? A. Yes, sir. * * * Q. Now, I will ask you, Mrs. Bell—I will hand you Exhibit 1, and ask you if you ever saw that paper before? A. If I saw it before; no, no, I did not. Q. That purports to be a deed from Campbell to the Butte Investment Company to your property? A. No, sir; I never saw that. Q. Now, did Wade ever deliver you a deed to this property from Campbell? A. No, sir. Q. I will ask you if you ever talked to Mr. Wade about your deed? A. Yes, sir; I did several times. Q. What did he tell you then? A. Why he told me when I signed that he would deliver the deed back to me from Mr. Campbell. Q. No, no; when you asked him about the deed what did he tell you? A. Well, he told me it was all right. Q. Mrs. Bell,' did you ever know —when was the first time you ever knew this deed had been alleged to have been made in blank by Campbell? A. Monday night. Q. It was the 6th of July? A. Yes. Q. Mrs. Bell, when was the first time you learned that you would not have to sign a deed to this property for these people? A. Why, when I talked to Mr. Wade, Monday night. Q. What time was that? A. Well, that was about 9 o'clock, perhaps a few minutes later. Q. Now, what did you tell him at that time about this trade? A. Well, I told him that I did not want it to go through; that I had made other arrangements. Q. Yes. Now, the next morning what did you do with reference to calling or talking to any person about this deal? A. Well, I called Mr. Cramer the first, about—well, I guess it was close on to nine o'clock—and told him— Q. What did you tell him? A. I told him not to put the deal through, that I had made other arrangements. Q. Then what did you do? A. Well, he told me that it was too late; and I said, `Why is...