Cannon v. Blake

• Citation: 182 S.W.2d 303
• Decision Date: 05 September 1944
• Docket Number: No. 38870.,38870.
• Parties: ALEXANDER CANNON and ETHEL E. CANNON v. FRED A. BLAKE and FRED GRUENINGER, Defendants, and MRS. FINDLAY J. PINKERTON, Appellant.
• Court: United States State Supreme Court of Missouri

182 S.W.2d 303 ALEXANDER CANNON and ETHEL E. CANNON
v.
FRED A. BLAKE and FRED GRUENINGER, Defendants, and MRS. FINDLAY J. PINKERTON, Appellant. No. 38870. Supreme Court of Missouri. Division One, September 5, 1944.

[182 S.W.2d 304]

Appeal from Circuit Court of County of St. Louis. — Hon. Fred E. Mueller, Judge.

AFFIRMED.

Michael J. Ebeling for appellant.

(1) The court erred in admitting plaintiffs' Exhibits D, F and I because there is no proper showing that Blake was authorized to act for Mrs. Pinkerton. Sec. 3354, R.S. 1939. (2) Defendant has never released or relinquished her right to full reimbursement for the amount represented by the deed of trust herein involved. (3) The H.O.L.C. Act does not prohibit a second deed of trust on properties covered by their loans. Title 12, Sec. 1463, paragraph (d) U.S.C.A.; Meek v. Wilson, 283 Mich. 679, 278 N.W. 731. (4) No offense against public policy transpired in the making of this deed of trust. Ridge Inv. Corp. v. Nicolosi, 193 Atl. 710.

Redick O'Bryan for respondents.

(1) The judgment and decree are for the proper parties. United States v. Kreidler, 11 Fed. Supp. 402; McAllister v. Drapeau, 92 P. (2d) 911; Adams Co. v. Pacific States Sav. & Loan, 94 P. (2d) 370; Woods v. Kern County Mutual B. & L., 93 P. (2d) 837; Wilcox v. Cobb, 58 Ga. App. 39, 197 S.E. 517; Cook v. Donner, 145 Kan. 675, 66 P. (2d) 587, 110 A.L.R. 244; Meek v. Wilson, 283 Mich. 679, 278 N.W. 731; Pye v. Grunert, 201 Minn. 191, 275 N.W. 615, 276 N.W. 221; Markowitz v. Berg, 11 Atl. (2d) 107; Stager v. Junker, 14 N.J.L. 913, 188 Atl. 440; Chaves County B. & L. v. Hodges, 40 N.M. 326, 59 P. (2d) 671; First Citizens Bank & Trust Co. v. Speaker, 294 N.Y.S. 737; Jessewich v. Abbene, 154 Misc. 768, 277 N.Y.S. 599; Dayton Mtge. & Inv. Co. v. Theis, 62 Ohio App. 169, 23 N.E. (2d) 511; Anderson v. Horst, 132 Pa. Supr. 140, 200 Atl. 721; H.O.L.C. v. Aiello, 5 Atl. (2d) 649; Local Federal Sav. & Loan Assn. v. Harris, 107 Pac. (2d) 1012; Smelzer v. McCory, 101 S.W. (2d) 850, 124 S.W. (2d) 339; Schram v. Walton, Eastern Dist. Mich., 35 Fed. Supp. 889; Bealkowski v. Powers, 35 N.E. (2d) 386, 310 Ill. App. 662; United States v. Kay, 58 Sup. Ct. 468, 82 L. Ed. 607, 303 U.S. 1. (2) This judgment and decree are in personam and there is no appeal by defendants Blake and Grueninger. (3) The note and deed of trust are void because they were taken in violation of Title 12, Sec. 1463, paragraph (d), U.S.C.A., as against public policy. See cases cited under (1). (4) The Statute of Frauds (Sec. 3354, R.S. 1939) does not apply in this case, because all holders of notes and deeds of trust being paid off by the H.O.L.C. had to be surrendered to the H.O.L.C. at the time of closing the H.O.L.C. loan for release of record. Title 12, Sec. 1463, paragraph (d), U.S.C.A.; Also rules and regulations of the H.O.L.C. in force and effect as of March 20, 1934.

VAN OSDOL, C.

Suit to cancel a note and deed of trust, and to restrain a foreclosure. It is contended that the deed of trust is void ab initio. This court has jurisdiction, as title to real estate is involved. Peters v. Kirkwood Federal Savings & Loan Assn., 344 Mo. 1067, 130 S.W. 2d 507. An appeal was perfected from a decree of cancellation.

In 1933, plaintiffs-respondents were indebted to defendant-appellant, Mrs. Findlay J. Pinkerton; their promissory note evidencing this debt was secured by mortgage on their home. Their property was also encumbered by a second mortgage to secure a note, defendant Fred A. Blake, payee. Respondents made application to Home Owners' Loan Corporation (hereinafter referred to as H.O.L.C.) for a loan of $4750. (See Home Owners' Loan Act of 1933, Title 12, U.S.C.A., sec. 1461 et seq.) December 2, 1933, appellant signed a mortgagee's consent to take bonds in the sum of $4220 "in full settlement of the claim of the undersigned." December 4, 1933, defendant Blake signed a like consent to take bonds in the sum of $481.70 in full settlement of his claim. The "consents" were to be binding for a period of ninety days from date. H.O.L.C. rejected the loan, but reconsidered, and closed a loan of $4400 in bonds, March 20, 1934, having received a letter under date of February 24, 1934, as follows,

"We have your letter of Jan. 11th in reference to the property of Alexander Cannon at 7519 Folk Avenue, Maplewood, Mo., in which you show an appraisement of $5,500.00 and...