Central Missouri Trust Co. v. Taylor

• Citation: 289 S.W. 658
• Decision Date: 03 January 1927
• Docket Number: No. 15663.,15663.
• Parties: CENTRAL MISSOURI TRUST CO. v. TAYLOR.
• Court: Court of Appeal of Missouri (US)

289 S.W. 658

CENTRAL MISSOURI TRUST CO. v. TAYLOR.

No. 15663.

Kansas City Court of Appeals. Missouri.

January 3, 1927.

Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.

Action by the Central Missouri Trust Company against Herbert I. Taylor. Judgment for defendant, and plaintiff appeals. Affirmed.

Dumm & Cook, of Jefferson City, for appellant.

D. W. Peters, of Jefferson City, for respondent.

ARNOLD, J.

This is an action to recover a balance of $2,610.54, based upon a covenant contained in a warranty deed wherein defendant is alleged to have agreed to pay a certain note secured by a deed of trust on a tract of land purchased by him.

The facts of record show plaintiff is a corporation organized and existing under the laws of Missouri, and engaged in general banking business at Jefferson City in said state; that defendant resides at Jefferson City, Mo., and, besides being a physician, owns lands, among which was a certain tract in Callaway county, Mo. In 1919, J. A. Fullerton and his wife, Anna W., owned a tract of land adjoining that owned by defendant in said county against which there was an outstanding note for $3,000, secured by a first deed of trust, payable to Nancy A. Winship, the mother of Anna W. Fullerton.

On February 7, 1920, Fullerton appeared in the office of defendant in Jefferson City and proposed to sell the land in question to defendant. The latter told Fullerton he might be interested in buying the land if he had the money to buy it, but that he did not have it. Fullerton then left defendant's office, and in about a half hour Mr. Sam B. Cook, president of plaintiff trust company, appeared at the office of defendant, who was a customer of plaintiff, and informed defendant that if he wanted the money with which to effect the trade with Fullerton, plaintiff would let him have it. Thereafter the trade was arranged in the trust company offices, between defendant and Fullerton, with Cook arranging for said loan. Shortly thereafter Fullerton presented defendant a warranty deed to the land in question and explained it would be necessary to take the deed to Kansas City, Mo., for the signature of his wife and have the same properly acknowledged. Defendant testified he read the deed at that time, and that it did not then contain the clause that defendant assumed and agreed to pay the existing note and deed of trust. In respect to the deed of trust, defendant testified that Fullerton told defendant it had three years to run before maturity.

It appears that after the warranty deed was prepared and submitted to defendant, it was taken to Kansas City, where it was signed and acknowledged and mailed from there either to plaintiff or direct to the recorder of deeds in Callaway county. At any rate, it reached the recorder either from Kansas City directly, or indirectly through plaintiff by mail; the evidence on this point not being clear. After a period of about three weeks, the deed was forwarded by the recorder to defendant, who stated that he "casually" looked at it and filed it among his papers; that at that time he did not notice the clause that he "assumed and agreed to pay" the outstanding note and deed of trust.

At the time the deed was prepared, defendant borrowed $3,000 from plaintiff on his promissory note to make up the balance of the purchase price of $6,000 for the land. This amount was placed to defendant's credit at the bank, and defendant gave Fullerton his cheek for $2,900, which represented the balance of $3,000 after deducting certain expenses. At about this time plaintiff acquired the existing note and deed of trust given by the Fullertons to Nancy A. Winship, but defendant had no part in this transaction and his name does not appear on the note.

Defendant made payment of two installments of interest of $90 each, on his indebtedness to plaintiff, which payments were credited by plaintiff on the Winship note. Some time after the payment of the second installment of interest defendant testified he first discovered that the deed made to him by the Fullertons contained the clause that he assumed and agreed to pay the $3,000 Winship note; that he then notified plaintiff that this particular clause was not in the deed when it was shown to him by Fullerton and he refused to make further payments. Thereafter an agreement was entered into between plaintiff and Fullerton to the effect that if defendant would execute to Fullerton a quitclaim deed, Fullerton would take the land back and pay off and discharge all indebtedness due plaintiff on said land. Plaintiff presented this proposition to defendant, who accepted it, executed a quitclaim deed in accordance therewith, and delivered it to plaintiff as agent for Fullerton. This transaction took place on June 20 and 22, 1922, and Fullerton drew a check on a Kansas City bank in the sum of $378.16, in favor of plaintiff, covering accrued interest and perhaps some other expenses in connection with a foreclosure proceeding which had been instituted. This check was returned unpaid for lack of funds. On August 30, 1922, plaintiff again sought to collect the Winship note from defendant, and upon his refusal to pay, this action was instituted.

It appears plaintiff foreclosed the deed of trust, purchasing the land for $1,000. After deducting certain items of interest and expenses incident to the foreclosure proceedings, there remained an unpaid balance of $2,610.54, and this is the amount plaintiff seeks to recover from defendant in this action. A jury was waived and the cause was tried to the court. No findings of fact nor declarations of law were asked or given. The cause was taken under advisement, and judgment and decree were finally entered for defendant. A motion for a new trial was ineffectual, and plaintiff has appealed.

The petition alleges plaintiff is a corporation, organized under the laws of Missouri and engaged in the general banking business; that defendant is a citizen of Jefferson City, Mo.; alleges the execution on May 29, 1919, of the $3,000 note by J. A. Fullerton and Anna W. Fullerton, his wife, to Nancy A. Winship, payable in five years at 6 per cent. per annum, interest payable semiannually; that on the same date, to secure said note, a deed of trust was executed on the lands in Callaway county, Mo.; that on February 7, 1920, the Fullertons deeded the land to defendant herein, subject to said deed of trust, the warranty deed reciting that Herbert I. Taylor, defendant herein, assumed and agreed to pay the amount of the said note and deed of trust, and that on February 17, 1920, said deed was duly recorded in Callaway county, Mo.; that thereafter, for valuable consideration, and prior to maturity, this plaintiff became the owner and holder of said promissory note and deed of trust, and is now the owner and holder of said note; that said deed of trust was duly foreclosed and the real estate sold thereunder; that the net proceeds of said foreclosure and sale amounted to $964.82, which was credited upon said note; that there is now due on said note an unpaid balance of $2,610.54, for which judgment against defendant is asked.

The answer admits plaintiff's corporate status; the execution and delivery of said note and deed of trust; the conveyance of the land to defendant by warranty deed executed by the Fullertons, subject to the deed of trust; and generally denies all the other allegations of the petition. As affirmative defense, the answer avers that...