Carter v. Burns

• Decision Date: 16 March 1933
• Docket Number: No. 30799.,30799.
• Citation: 61 S.W.2d 944
• Parties: CARTER v. BURNS et al.
• Court: Missouri Supreme Court

61 S.W.2d 944

CARTER v. BURNS et al.

No. 30799.

Supreme Court of Missouri, Division No. 1.

March 16, 1933.

Motion for Rehearing Overruled June 12, 1933.

Appeal from Circuit Court, Linn County; Paul Von Osdol, Judge.

Suit by Harley Carter against Dillon Turney and others. From an adverse decree, defendants appeal. Named defendant having died after the appeal was taken, the cause, as to him, was revived against Thomas P. Burns, administrator of his estate.

Affirmed.

Starr & Jordan, of Fairfield, Iowa, and Thomas P. Burns, of Brookfield, for appellants.

Ralph H. Munro, of Fairfield, Iowa, Otho F. Matthews, of Macon, H. K. West, of Brookfield, and Gilbert Lamb, of Salisbury, for respondent.

HYDE, Commissioner.

This is an action in equity for the release of a deed of trust. The facts in this case are stated in the case of Carter v. Burns, administrator (Mo. Sup.) 61 S.W.(2d) 933, decided concurrently herewith. The court found that the $19,378.75 note secured by deed of trust on the Chariton county farm of 1,418.87 acres described in the petition had been paid and entered its decree ordering the defendant to surrender the note to the plaintiff and declared the note and trust deed void and no longer a lien or an incumbrance upon the land. The defendants have appealed from this decree. As stated in the opinion in Carter v. Burns, administrator, Dillon Turney died after the appeal was taken and the cause as to him revived against his administrator. The other defendants and appellants claim to be interested by reason of being partners in the firm of Joel Turney & Co.

There is only one question presented in this case, that is: Whether Dillon Turney, on the 5th day of March, 1921, paid the note, ordered canceled by the decree herein, or whether it was purchased at that time by the firm of Joel Turney & Co. Since this is an action in equity, the case is heard here de novo and this court passes upon the weight of the evidence. However, the verbal testimony on this issue was directly conflicting and in such a situation, since the chancellor has had the witnesses before him, whose credibility is involved, this court will usually defer to his findings unless satisfied they are against the weight of the evidence. Manahan v. Manahan (Mo. Sup.) 52 S.W.(2d) 825; Scott v. Hill (Mo. Sup.) 50 S.W.(2d) 110; Norton v. Norton (Mo. Sup.) 43 S.W.(2d) 1024; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S. W. 50. Our conclusion is that the evidence amply sustained the finding...