Carter v. Burns

• Citation: 61 S.W.2d 933,332 Mo. 1128
• Decision Date: 12 June 1933
• Docket Number: 30800
• Parties: Harley Carter v. Thomas P. Burns, Administrator of the estate of Dillon Turney, Appellant
• Court: United States State Supreme Court of Missouri

61 S.W.2d 933

332 Mo. 1128

Harley Carter v. Thomas P. Burns, Administrator of the estate of Dillon Turney, Appellant

No. 30800

Supreme Court of Missouri

June 12, 1933

Rehearing Granted, Reported at 332 Mo. 1128 at 1146.

Appeal from Linn Circuit Court; Hon. Paul Van Osdol, Judge Opinion filed at October Term, 1932, March 16, 1933; motion for rehearing filed; motion overruled at May Term, June 12 1933.

Judgment reversed.

Starr & Jordan and Thomas P. Burns for appellants.

The court erred in finding for plaintiff in the lawsuit because the several actions were clearly barred by the Statute of Limitations. 27 C. J. 132. The cause of action accrued when the debt was due, so that all of the causes of action herein were barred by the Statute of Limitations. 37 C. J. 816; Sec. 2967, R. S. 1929. The court erred in finding for plaintiff in this cause for the reason that all of the notes involved in this appeal were past due on March 5, 1921. That the alleged oral promise on the part of Dillon Turney to pay Ellsworth Turney's debts was alleged to be made on March 5, 1921. These suits were brought on July 6, 1929, and all of said alleged claims were barred if there had been a promise within five years from March 5, 1921. Sec. 2967, R. S. 1929; Hurt v. Ford, 142 Mo. 283; Wahl v. Cunningham, 6 S.W.2d 584; Ed Meegan v. Illinois Surety Co., 195 Mo.App. 427; Haberle v. O'Day, 61 Mo.App. 395; Nunn v. Carroll, 83 Mo.App. 141; Walther v. Merrell, 6 Mo.App. 380; Nally v. Reading, 107 Mo. 355. The alleged claim that Dillon Turney agreed to pay Ellsworth Turney's debts was clearly barred after five years from the alleged promise. Sec. 862, R. S. 1929; Curtis v. Sexton, 201 Mo. 230; Briges v. Stephens, 132 Mo. 549; Gross v. Watts, 206 Mo. 398; Brown v. Irving, 269 S.W. 688; Buskirk-Rutlidge Lumber Co. v. Browning, 267 S.W. 199. The evidence in this case shows that the transactions regarding the $ 19,000 note was a purchase of the note and not a payment. Lipscomb v. Talbott, 243 Mo. 35; Old Bank Trust Co. v. Orr, 26 S.W.2d 858; Credit Alliance Corporation v. Bryan, 27 S.W.2d 444; Kilkenny v. Kilkenny, 279 S.W. 185; Kelly v. Briggs, 290 S.W. 109. The charge against Dillon Turney under the lawsuit was collateral and therefore no consideration flowing to Dillon Turney and he was not liable. 27 C. J. 147; First Natl. Bank v. Crutcher, 15 S.W.2d 890. The alleged contract to pay the debts of Ellsworth Turney was barred by the Statute of Frauds. Alexander v. Alexander, 150 Mo. 600; Parker-Washington Co. v. Dennison, 267 Mo. 249; Quint v. Kingsbury, 289 S.W. 669; Sec. 2967, R. S. 1929. Dillon Turney was sued herein on an alleged oral promise to pay the notes of a third party. No consideration accrued to him and the cause of action was clearly barred under the Statute of Frauds. Meegan v. Illinois Surety Co., 195 Mo.App. 430; Mooly v. Huddleston, 13 S.W.2d 1087; Cement & Material Co. v. Kreis, 261 Mo. 171. The equity suit turned on the question of whether or not the $ 19,000 note was purchased by Joel Turney & Company or whether it was paid off. The note was past maturity and under the facts in this case it was clearly a purchase by Joel Turney and Company. Kilkenny v. Kilkenny, 279 S.W. 185; Kelly v. Briggs, 290 S.W. 109; Prather v. Hairgrove, 214 Mo. 167; Bank v. Freund, 80 Mo.App. 657.

Ralph H. Munro, Otho F. Matthews, H. K. West and Gilbert Lamb for respondent.

(1) The appeal herein should be dismissed for lack of authority in anyone to file a bill of exceptions in this cause, time having elapsed when same could be filed. Crawford v. Railway Co., 171 Mo. 78; McCormick v. Shaughnessy, 34 L. R. A. (N. S.) 1188; Railroad v. Woodson, 110 Mo.App. 208; Prior v. Kiso, Admx., 96 Mo. 303. The purported abstract of record filed herein did not show an order for the filing of same by the court nor that the bill of exceptions was filed from record entries in the clerk's office and for that reason the appeal should be dismissed. Harding v. Bedoll, 202 Mo. 625; Wheeler v. Shull, 282 S.W. 61; Birmingham v. Warren, 34 S.W.2d 116; Pennowfsky v. Coerver, 205 Mo. 135; Alt v. Dines, 227 Mo. 418. (2) This cause is not entitled to be revived in the name of the foreign administrators of the estate of Dillon Turney. Rentschler v. Jamison, 6 Mo.App. 135; Geer v. Fergeson, 56 Ark. 324; Judy v. Kelley, 11 Ill. 211; Braithwaite v. Harvey, 27 L. R. A. 101; Brown v. Fletcher, 15 L. R. A. (N. S.) 632; Brown v. Fletcher, 210 U.S. 82. (3) The evidence supporting plaintiff's petition is clear and convincing that payment of the note by Dillon Turney was intended. McFarland v. Nellson, 20 S.W.2d 63; 41 C. J. p. 723, sec. 769; Knighton v. Chamberlain, 164 P. 703; Fisher v. Spillman, 118 P. 66; 27 Cyc. 1248-9; Mowbray v. Simons, 183 Iowa 1389. (4) Plaintiff sought the proper relief in this case. Gardner v. Buckeye Savings & Loan Co., 78 A. L. R. 1.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action at law in four counts to enforce an agreement to assume and pay four notes, each of which was secured by a deed of trust on a farm of 1418.87 acres in Chariton County. It was tried before the court without a jury. At the same time there was pending an action in equity to compel the release of a prior deed of trust on the farm. That case, Carter v. Burns, administrator, 61 S.W.2d 944, is decided concurrently herewith. Both cases were tried at the same time, but were not consolidated, in the circuit court. Evidence was first taken in the equity case, which showed that Ellsworth Turney, of Fairfield, Iowa, owned the farm in 1917; that he then owed $ 47,000 to the Mutual Benefit Life Insurance Company, which was secured by a first deed of trust on 1208.87 acres of the land; and that he owed $ 5,000 to Bartlett Brothers Land and Loan Company which was secured by a first deed of trust on the remaining 210 acres. During the next two years Ellsworth Turney nearly doubled this mortgage indebtedness. On the first day of June, 1917, he executed a deed of trust on the farm securing his note for $ 19,378.75, due June 1, 1920, to respondent and Fred W. McClain, both also of Fairfield. It was the subject of the equity action. Thereafter, he executed the four notes, which were those involved in this law action, also secured by deeds of trust on the farm. The first of these was executed July 7, 1917, and secured his note to Fred W. McClain for $ 4,500 due July 7, 1920. On September 10, 1917, he executed another deed of trust on the farm securing his note to respondent for $ 1,600 due September 10, 1920. On the fourth day of January, 1919, he executed another deed of trust on the farm securing a note of $ 5,000 to Thomas C. Allen, due January 4, 1922, and on June 10, 1919, he executed still another deed of trust securing a note for $ 6,000 to respondent due June 10, 1920.

The first mortgages ($ 52,000 total) on the farm came due March 1, 1921. All of the other mortgages, except the Allen mortgage, were past due at that time. Ellsworth Turney had tried to get increased first mortgage loans, to take up the subsequent mortgages, but failed. In this effort he had been assisted by respondent who wrote Bartlett Brothers about it. On February 28, 1921, the defendant Dillon Turney, brother of Ellsworth Turney, had a conversation with respondent and McClain at respondent's office concerning Ellsworth Turney's affairs. There were two versions of what was said at that time. Respondent's version was that Dillon Turney said: "We are trying to get a loan and fell down and didn't get it. . . . I don't want you to foreclose on that . . . if I can get the deed to the farm I will pay these mortgages off;" that Dillon Turney called Ellsworth Turney in and told him "if you deed me that farm I will pay off these mortgages and deeds of trust and junior loans and I will get the $ 52,000 renewed;" that "Mr. Dillon Turney said he would pay them off if he could get the deed to the farm and I was willing as far as I was concerned to have the deed made to (Dillon) Turney;" and that "after they agreed to that Mr. Ellsworth Turney agreed to deed him the farm, and they went out and he (Dillon) says 'I will see you people in a few days.'" Ellsworth Turney did make a deed to the farm and delivered it to Dillon Turney on that date. Ellsworth Turney's wife would not sign the deed until she first talked to Dillon Turney. (It will be noted that respondent testified as to Dillon obtaining a deed, with his approval, and not of buying the land, for any fixed amount, from his brother.) Dillon Turney's version was as follows:

"I had this discussion with Fred (McClain) and told him I didn't care to get myself mixed up with it. Fred knew Ellsworth hadn't been keeping his interest payments up with Bartletts, and Fred suggested to me I take over a deed and go to St. Joe and see what arrangement I could make with Bartlett Brothers. I told him I would not ask Ellsworth for the deed. 'Well,' he says, 'We will ask him for it,' so Fred and I went to Carter's garage and Ellsworth was called. Carter and McClain stated the situation to Ellsworth. The next day was the first of March, when this loan of $ 52,000 was due. No arrangements had been made for refinancing, and they suggested to Ellsworth and urged that he give me the deed, stating that it would be only temporary, and for me to go to St. Joe and see what could be done. I did not join in the urging, for I told them I would not urge him to give me a deed, that was up to him. . . .

"Q. During the conversation was anything said about the taking care of these junior liens on the land, and, if so, what was said? A. Only this, if I could get an increased loan it would be necessary to have new papers made and they would get their money."

Dillon Turney went the next day to St. Joseph,...