Cavally v. Crutcher
| Decision Date | 28 September 1928 |
| Docket Number | No. 4478.,4478. |
| Parties | CAVALLY et al. v. CRUTCHER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Suit for injunction by Mattie R. Cavally and another against A. B. Crutcher, trustee, and others. A temporary restraining order was made permanent, and defendants appeal. Reversed and remanded, with directions.
Hamlin, Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for appellants.
Addison Brown and Neale & Newman, all of Springfield, for respondents.
This is a proceeding by injunction to enjoin the sale of real estate under a deed of trust. The temporary restraining order was made permanent and defendants appealed.
Plaintiffs allege that they are the owners of certain described real estate in Springfield, Mo.; that on March 8, 1924, they executed and delivered to defendant W. L. Crutcher their promissory note for $4,150, due in two years, with interest from date at 8 per cent.; that to secure said note they executed a deed of trust on the described real estate to defendant A. B. Crutcher, trustee for defendant W. L. Crutcher; that defendant L. F. Crutcher was at the time of the execution of said note and is now the actual owner of said note, but falsely pretends that said note was and is owned by defendant W. L. Crutcher; that there was no consideration for $456.50 of said note; that such amount was charged as and represents usurious interest; that the actual amount due on said note on April 12, 1926, was $3,647.82; and that on that date plaintiffs tendered to defendants' agent the amount due and in addition 25 cents for satisfying the record, but that said tender was refused. Here follows allegations respecting publication of notice of sale, and that such sale would cast a cloud upon the title and work irreparable injury for which, it is alleged, plaintiffs have no adequate remedy at law.
The prayer is as follows:
"Wherefore, the plaintiffs pray that the defendants be enjoined and restrained under order, judgment and decree of this court from proceeding to foreclose said deed of trust or to sell the real estate under the terms and provisions of the deed of trust; that the Court ascertain and determine the amount which plaintiffs should pay as principal and legal interest on said note, and that upon the payment of said amount into open court, the said note and deed of trust securing payment of the same be canceled and for naught held, and for such other and further orders and judgments in the premises as to the Court shall seem meet and proper."
Defendants filed separate answers. A. B. Crutcher in his answer admitted he was trustee in the deed of trust and that he advertised the described real property for sale under said deed of trust, and disclaimed any knowledge of the facts alleged in plaintiffs' petition pertaining to the issues in controversy. W. L. Crutcher in his answer alleged that plaintiffs obtained the loan of $4,150 from him and executed to him the note and deed of trust referred to in the petition, and denied generally allegations not admitted. Further answering, defendant W. L. Crutcher averred that he furnished the $4,150 for the loan and did not take or receive from any one any commission and "knows nothing of the arrangements between said L. F. Crutcher and plaintiffs relative to any commission payable to said L. F. Crutcher and that he is now and has been ever since said loan was made the sole owner of said note and deed of trust"; that he had no knowledge of any tender, and there was due him on said note the sum of $4,150 and 8 per cent. interest thereon from March 8, 1926, the due date of the note.
Defendant L. F. Crutcher alleges in his answer that at the instance of plaintiffs he procured for them the loan of $4,150, that they executed the note and deed of trust to secure the same, and denies generally the allegations in the petition not admitted in his answer. Further, he avers that the $4,150 loaned was the money and property of defendant W. L. Crutcher and that the entire amount of $4,150 was "paid out to said Mattie R. Cavally in accordance with the agreement between him" and said plaintiff; that $456.60 was not paid to him or any other person as usurious interest or as a commission and that he had no knowledge of any tender. The reply to the separate answers was a general denial.
The court in the decree for plaintiffs in substance found that defendant L. F. Crutcher furnished the property and money to make the loan to plaintiffs, and that the $4,150 note and deed of trust securing same was at all times his property; that there was no consideration for $456.50 of said note; and that the $456.50 of the principal of the note represents usurious interest. The court further found that on April 12, 1926, plaintiff Mattie R. Cavally tendered to L. F. Crutcher's agent, the McDaniel National Bank of Springfield, the amount legally due upon said note together with fee for record satisfaction of deed of trust, and that said tender was refused; that plaintiffs have at all times been ready and willing to pay the amount lawfully due upon said note, which the court found to be $3,692. There are other findings, but it is not necessary to set them out.
The decree concludes as follows:
The principal question for determination is the sufficiency of the evidence to support the decree. Prior to March 8, 1924, there was a loan of $3,065 on plaintiffs' property which loan is referred to in the record as the Ransdall loan. This loan was on the property when plaintiffs purchased, and there was also a second lien against the property for $400 with which the Crutchers were not connected or concerned. Defendant L. F. Crutcher, according to Mrs. Cavally, held the papers respecting the Ransdall loan and interest thereon was paid to him. It is contended by plaintiffs that Ransdall was "a mythical man" but that question is not of particular consequence. By March 8, 1924, plaintiffs had reduced the second lien to $283.37. On the date last mentioned the balance on the second lien was due, but the Ransdall loan was not due until September, 1924. March 8, 1924, plaintiff Mattie R. Cavally went to defendant L. F. Crutcher to ascertain if arrangements could be made so that the second loan or lien could be paid off and discharged. Crutcher would not agree to then accept payment and release the Ransdall lien, but suggested that he would take up the second loan and make a new loan and include therein the Ransdall loan and the amount necessary to take up the second loan. Negotiations followed which resulted in L. F. Crutcher agreeing to make the new loan, but before agreeing to do so he required certain repairs and improvements to be made upon the property. It is conceded by plaintiffs that L. F. Crutcher, preparatory to the execution of the note and deed of trust for the new loan, paid off the second loan and paid the taxes, the abstract fee and the fee for examining the abstract, and paid a lumber company for some material furnished for the repairs, and also gave to plaintiff Mattie R. Cavally $50.11 in cash.
The admitted amounts which went into the note for the new loan are as follows:
The Ransdall loan ............................. $3,065 00
The second loan ............................... 283 37
State and county taxes ........................ 133 71
City taxes .................................... 32 33
Abstracting ................................... 17 65
Examining abstract ............................ 11 00
Compton Lumber Company ........................ 100 00
Cash .......................................... 50 11
Insurance item ................................ 33
_________
Total .................................... $3,693 50
The court found that $456.50 of the $4,150 note represented a usurious charge. The amount, $3,693.50, admitted by Mrs. Cavally to be correct, plus the $456.50, equals $4,150, the amount of the note given for the new loan. Defendant L. F. Crutcher, however, testified that in addition to the items going to make the $3,693.50 he let Mrs. Cavally have $440 in cash in addition to the $50.11 cash item above mentioned, which cash item L. F. Crutcher claims should be $66.10. The $3,693.50 plus the $440 amounts to $4,133.50 which amount is $16.50 less than $4,150, the principal of the note given for the new loan. Mrs. Cavally, who represented plaintiffs in all the matters pertaining to the new loan, testified that defendant L. F. Crutcher charged her a commission of 10 per cent. on the loan, which was at first to be $4,000; that she did not have $400 to pay, and that defendant then charged 10 per cent. in the commission of $400, which made the commission $440; that before the new loan note and deed of trust were actually executed it was discovered that $4,000 would not be sufficient and the new loan was raised to $4,150, an increase of $150; that the commission at 10 per cent. on the $150 was $15; that she did not have the $15, and that defendant L. F. Crutcher charged 10 per cent. on the $15, which commission amounted to $1.50; that the $15 commission plus the $1.50 commission...
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