Cobble v. Garrison

• Decision Date: 11 April 1949
• Docket Number: 41021
• Citation: 219 S.W.2d 393
• Parties: George Cobble and Katie Cobble, His Wife, Susie A. Smith, Eulis Kenslow, and Minnie Kenslow, His Wife, Wilfred A. Brown and T. A. Brown, Plaintiffs, Eulis Kenslow and Minnie Kenslow, His Wife, Wilfred A. Brown and T. A. Brown, Respondents, v. J. E. Garrison, J. Elmer Kellett and Eliza J. Garrison, Defendants, J. E. Garrison, Appellant
• Court: Missouri Supreme Court

219 S.W.2d 393

George Cobble and Katie Cobble, His Wife, Susie A. Smith, Eulis Kenslow, and Minnie Kenslow, His Wife, Wilfred A. Brown and T. A. Brown, Plaintiffs, Eulis Kenslow and Minnie Kenslow, His Wife, Wilfred A. Brown and T. A. Brown, Respondents, v. J. E. Garrison, J. Elmer Kellett and Eliza J. Garrison, Defendants, J. E. Garrison, Appellant

No. 41021

Supreme Court of Missouri, First Division

April 11, 1949

From the Circuit Court of Howell County, Civil Appeal, Judge Gordon Dorris

Affirmed

OPINION

Van Osdol, C.

Action to restrain the foreclosure of a deed of trust; to adjudge the invalidity of the instrument on the ground it was wholly without consideration; and for a decree quieting title. The cause was tried on an amended petition whereby George H Cobble, Katie Cobble and Susie A. Smith, who joined as parties plaintiff in the original petition, were dropped as parties. The trial chancellor found there was "no consideration for the trust deed - and by reason of the non-existence of a debt the trust deed is invalid"; and judgment was rendered in accordance with the prayers of plaintiffs' petition. Defendant J. (John) E. Garrison named beneficiary in the deed of trust, has appealed.

In this case the essential and inherent validity of the deed of trust itself is in dispute, and "title to real estate" is involved in an appellate jurisdictional sense. This court has appellate jurisdiction of the case. Section 3, Article V, Constitution of Missouri, 1945; Nettleton Bank v. McGauhey's Estate, 318 Mo 948, 2 S.W.2d 771; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Munday v. Austin, Cause No. 40996, decided Court en Banc, February 14, 1949.

The general rule is that a mortgage is not valid and binding unless founded on a sufficient consideration. And the existence of an obligation to be secured is an essential element of a mortgage, or of a deed of trust in the nature of a mortgage. The mortgage has no efficacy if unaccompanied by a debt or obligation. Donovan v. Boeck, 217 Mo. 70, 87, 116 S.W. 543, 547, and cases therein cited; Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616; Mosley v. Cavanagh, 344 Mo. 236, 125 S.W.2d 852; Munday v. Austin, supra; 36 Am. Jur., Mortgages, § 106, pp. 740-741, §§ 57-58, pp. 717-718. A mortgage imports or implies a consideration, and the introduction of the instrument into evidence constitutes prima facie proof it was given by the mortgagor or grantor for a consideration moving to him. Plaintiffs, in their attack on the validity of the deed of trust based on the ground of want of consideration, had the burden of proof. They were entitled to a decree canceling the instrument upon evidence clearly preponderating in their favor on the issue. Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; Munday v. Austin, supra.

Evidence was introduced in the trial of the cause as follows

In 1931 Curtis J. Garrison and Eliza J., his wife, bought the fifty-four acres of land in the deed of trust described from Jessie F. Bean, and we infer Garrison and wife gave a deed of trust back on the land to secure a note representing at least a part of the purchase price.

The deed of trust involved in the instant case was purportedly executed by C. J. Garrison and "Louisa" J. Garrison, September 12, 1941, and acknowledged on that day before one M. M. Freeman, a notary public, who was scrivener of the instrument. The signature of "Louisa" J. was by "her mark." The deed of trust named defendant J. Elmer Kellett as trustee, and defendant-appellant J. E. Garrison, hereinafter sometimes referred to as "defendant," son of Curtis J. and Eliza J., was named the beneficiary. The instrument was conditioned upon the payment of "the debt and interest expressed" in a note for $500, of even date, due in one year, C. J. and "Louisa Jane" Garrison, makers, J. E. Garrison, payee. The deed of trust recited the note was signed by C. J. Garrison and "Louisa Jane" Garrison. The document was recorded April 26, 1945, after the death of Curtis J. Garrison, who died April 1, 1945.

Defendant testified he had taken the deed of trust to the recorder's office in 1944, "and I couldn't get it recorded and I left it with them."

(May 25, 1942, Curtis J. and Eliza J. Garrison had conveyed eleven and a fraction acres of the described land to plaintiffs, Eulis and Minnie Kenslow. Defendant in his brief concedes the trial court's judgment and decree relating to the lands conveyed to the Kenslows "is proper and such judgment releasing the Kenslow land from the deed of trust should be affirmed.")

In September 1946, after the recording of the deed of trust, Eliza J. Garrison conveyed the described land to George H. Cobble and wife, and Susie A. Smith. December 5, 1946, the Cobbles and Susie A. Smith conveyed to plaintiff-respondent, Wilfred A. Brown, who, December 10, 1946, conveyed to his father, plaintiff-respondent T. A. Brown. And T. A. Brown, April 14, 1947, reconveyed the land, reserving in himself a life estate, to his son Wilfred A. The Browns testified they had no actual knowledge of the recorded deed of trust. They did not search the records and made no examination of the title. They relied on the statements of their grantors that the land "was clear."

When Curtis J. and Eliza J. were selling the eleven and a fraction acres to Eulis and Minnie Kenslow in 1942, defendant was "handling the deal" for his parents. R. E. Butler and wife were lending the purchase money to the Kenslows. Defendant testified the Kenslows paid him "some money on this land - I turned it over to mother and father." Butler and wife testified defendant stated to them "there wasn't any" deed of trust on the land, "Mr. Garrison (defendant) assured me that there was no indebtedness of any kind." One Forster, Eulis and Minnie Kenslow, and Tim Kenslow, brother of Eulis, testified they had heard defendant make like statements in 1942.

The deposition of defendant Eliza J. Garrison was offered and read into evidence by plaintiffs. She is "up toward 78 years" of age, and cannot read or write. Her testimony is not unequivocal, and indicates a lack of clear recollection of the circumstances of her execution, if so, of the deed of trust involved herein; and, indeed, it seems she may not have known she was signing any instrument in the nature of a mortgage.

On direct examination she stated she had not signed a note or deed of trust "in favor of" defendant. She had "signed one and me and the old man paid that off," it was the one given (to Bean?) when they bought the land. She said she had never owed defendant. "He owes me seven or eight hundred dollars."

On cross-examination she testified,

"Q. You both made it (deed of trust herein involved) and

why did you make it to John - ? A. I told you. Q. What

did you say? A. To pay the taxes on the place. Q. So the

taxes were to pay and you gave him a mortgage? A. To pay

out of our money."

On re-direct examination,

"Q. - I am talking now about any mortgage in favor of

your son John Garrison whereby you promised to pay John any

money, did you ever give any mortgage of that kind? A. No,

sir, I did not.

And on re-cross examination,

"Q. What did you give a mortgage for? A. Didn't I just

tell you. Q. Did you tell me to pay some taxes? A. That is

what he done. Q. John did pay taxes on the land for several

years? A. He paid it out of our money. Q. You have him the

money? A. No, sir, he never did pay it back. I can tell you

what he done. He sold $100.00 worth of hogs for me and never

gave me a penny of it and he got $400.00 out of part of the

land and that is all and we never got a penny - Q. Wasn't

there a lot of taxes past due that run before you made this

mortgage, do you remember of some taxes before you made this

mortgage? A. Yes, sir. Q. You say John paid them but you

say he paid it out of your money? A. He did. I'll tell you

what he done. He sold $100.00 worth of hogs for me and never

gave me a penny and he also sold $350.00 worth of land and

never gave us none of that."

And she again stated she had not given "John a $500.00 note I kept him all the time from the time relief started and fed him. Part of the time I got it and part of the time I didn't."

M. M Freeman, scrivener of the deed of trust, now a resident of Florida, testified by deposition (offered and read into evidence by defendants) that he lived in West Plains in 1941 - had lived there for many prior years. He had known Curtis J. and Eliza Jane Garrison. He stated "Rad" Garrison (a brother of defendant) was a veteran of World War I, and drew a "pension," he lived with his parents. "Rad wanted his folks to give him a mortgage on the little place to secure him, as he was furnishing all of the groceries - . Of course, my recommendation was that the only thing that seemed right for them to do would be to give him a mortgage - and they agreed to it. Now, the old lady was not with them the first time they came in. When it was agreed that they would make a mortgage, I drew the mortgage and the old man signed it and a week or so later he brought the old lady in. I read the mortgage to her, she agreed to it and signed it. They took it away with them and I didn't know but what they had it recorded. They were just that ignorant. It seems from what I heard recently it was not recorded at that time." The witness Freeman is now nearly 80 years old and his mind, he says, is "getting a little bit slippery. I don't remember like I did." The witness described Eliza J. as "medium-sized and rather slender build, not fleshy - I would guess she weighed around 140 pounds but that is guessing." (There was testimony that Eliza J. has been small and frail for years,...