Coffey v. Higbee

• Decision Date: 10 October 1927
• Docket Number: 26217
• Parties: J. O. Coffey, Trustee in Bankruptcy, Appellant, v. W. A. Higbee and E. H. Roberts
• Court: Missouri Supreme Court

298 S.W. 766

318 Mo. 10

J. O. Coffey, Trustee in Bankruptcy, Appellant, v. W. A. Higbee and E. H. Roberts

No. 26217

Supreme Court of Missouri

October 10, 1927

Appeal from Adair Circuit Court; Hon. James A. Cooley Judge.

Affirmed.

Frank & Stewart, H. M. Saxbury and Rolston & Rolston for appellant.

(1) First: The court should have found for the plaintiff under the evidence at the very least so as to set such deeds of trust aside as to all except for the one thousand dollars that Higbee had advanced. Sec. 2276, R. S. 1919; Citizens Bank of Hayti v. McElvain, 280 Mo. 505; State ex rel. v. Purcell, 131 Mo. 312. Second: The court should have set the deeds of trust aside in toto, as defendant Higbee had not paid out the one thousand dollars at the time the attachment suits were filed. Citizens Bank of Hayti v. McElvain, 280 Mo. 513. (2) It was error to reject the testimony of Clarence Fortune, offered by the plaintiff, as to how William Knittel and his wife and Ernie Knittel were dividing up their cattle. Manheimer v Harrington, 20 Mo.App. 297; 4 Encyc. Evidence, 134-137; New York Store Merc. Co. v. West, 80 S.W. 923; Deering v. Collins, 38 Mo.App. 73. (3) It was error to reject the testimony of John Gentner, offered by plaintiff as to conversations with William Knittel and as to his conversations with Ernie Knittel. Also, it was error to reject the testimony of Mat Steen, offered by plaintiff, as to conversations with and admissions by Wm. Knittel. Citizens Bank v. McElvain, 280 Mo. 513; Manheimer v Harrington, 20 Mo.App. 297; 16 Cyc. 1116. (4) Also, it was error to reject the testimony of J. O. Coffey, offered by plaintiff, as to the property of Wm. Knittel and as to the exemptions allowed him, and the testimony of L. M. Starbuck, offered by plaintiff, as to whether the land he bought was sold at forced sale. Authorities above. (5) The trial court should have permitted plaintiff to take his nonsuit. Sec. 1410, R. S. 1919; Shanks Bros. v. Chicago Great Western Railroad Co., 273 S.W. 169; Templeton & McKee v. Wolf, 19 Mo. 101; National Bank of Commerce v. Butler, 163 Mo.App. 380; Bunting v. Stone, 169 Mo.App. 1.

M. D. Campbell and Higbee & Mills for respondents.

(1) Nine grounds are stated in the motion for new trial. Several of them are to the effect that plaintiff was entitled to a finding in his behalf. Others complain of the rejection and admission of evidence, and the last ground is that the court erred in overruling the plaintiff's motion and application for nonsuit. The grounds thus stated are inconsistent. It certainly is not a right given by law to the plaintiff, to say that the decision and judgment of the court should have been for him and in the next breath say the court should not have decided the case at all, but should have permitted a nonsuit. To claim a right to have the judgment in his behalf is utterly inconsistent with a claim that no decision should have been rendered. Hollingsworth v. Warnack, 112 Ky. 96; Behen v. Transit Co., 186 Mo. 430; Raming v. Railroad, 157 Mo. 477; Jordan v. Transit Co., 202 Mo. 418; White v. Railroad, 202 Mo. 539; Paddock v. Somes, 102 Mo. 235; O'Brien v. Transit Co., 212 Mo. 59. (2) Appellant did not have the right to take a nonsuit. The cause was submitted to the court and taken under advisement. Board of Education v. Fidelity & Guaranty Co., 155 Mo.App. 124; Lawyers Co-operative Pub. Co. v. Gordon, 173 Mo. 139; McLean v. Stuve, 15 Mo.App. 321.

OPINION

Atwood, J.

This is a suit in equity by the trustee of the bankrupt estate of William Knittel to set aside a deed of trust given by William Knittel on about 192 acres of land to E. H. Roberts, trustee, to secure to W. A. Higbee certain promissory notes therein described and aggregating the principal sum of $ 11,000. The case was tried to the court, resulting in judgment for defendants, and plaintiff has appealed.

Plaintiff went to trial on his amended petition, averring, among other things, that William Knittel was adjudged a bankrupt March 18, 1924; that on November 16, 1923, he was the owner of said 192 acres of land located in Schuyler County, Missouri; that on said date he was indebted to various persons in the sum of $ 31,271.70, and was insolvent; that he had no property with which to pay his obligations except his said land; that his son Ernest Knittel was indebted in a sum in excess of $ 30,000, among said debts being one for the principal sum of $ 10,000 due defendant Higbee; that on said 16th day of November, 1923, and again on November 22, 1923, with intent to hinder and delay his creditors, he executed a deed of trust for a fictitious consideration, conveying his said land to defendant E. H. Roberts, as trustee to secure to defendant, W. A. Higbee, said $ 10,000-debt of Ernest Knittel; that William Knittel did not owe defendant Higbee the debt secured by said deed of trust; and that said deed of trust was without consideration. The prayer was that the deed or deeds of trust be set aside and the land subjected to the claims of general creditors.

The answer of defendant Roberts was a general denial, and that of defendant Higbee was a general denial coupled with certain admissions of a formal nature.

The record discloses that in 1920, Ernest Knittel bought a 400-acre farm for which he paid $ 64,000. Of this amount he borrowed $ 40,000 from defendant Higbee, and secured the payment thereof by various deeds of trust. On March 13, 1922 William Knittel became surety on a $ 7500-note of Ernest Knittel's payable to the Queen City Bank, of which plaintiff J. O. Coffey was president, and took from Ernest Knittel a deed of trust on said four hundred acres of land junior to various deeds of trust then held by defendant Higbee thereon, which recited that it was for the purpose of holding William Knittel harmless by reason of his having signed said $ 7500-note as surety. On the same date plaintiff's bank caused Ernest Knittel to give it a chattel mortgage on all the personal property he owned, including the wheat then growing on this land, to secure another note for $ 5880 that he owed said bank. In the spring of 1923 Ernest Knittel defaulted in the payment of part of his interest on the notes to defendant Higbee and, because of the chattel mortgage to plaintiff's bank, he had no property out of which to raise the money to pay the same. Defendant Higbee made several unsuccessful efforts to collect this interest, culminating in a conversation in his office on the Saturday before November 16, 1923, in which Ernest Knittel told him that he was not able to pay his taxes or his interest and would be unable to pay his interest the following year, because Coffey refused to let him have any money out of his crop with which to pay same. Knittel agreed to return and talk the matter over later in the day. Instead, however, he went to the Recorder's office to get a list of the property covered by the chattel mortgage to Coffey's bank, to see if he had any property unincumbered which he could sell for the purpose of protecting his farm. At that time he asked the Recorder, Harry D. Hall, to interview defendant Higbee and ascertain if he would grant additional time, and asked Hall to let him know what success he had. In a few days Hall spoke to the defendant Higbee, and in that conversation the latter said that while he was not especially anxious to take over the farm, but would rather take it over and get half the proceeds as rent than to let it stand as it was and get none of the proceeds. Hall asked Higbee if he would grant an extension of time on the second mortgage notes, if William Knittel would make him safe. Higbee agreed to do so, and Hall replied that he would be in Queen City in a few days and that he would see William and Ernest Knittel about it. Hall reported to them the results of his conference with defendant Higbee, and the three agreed to meet at Higbee's office the following day. At this meeting Hall, as spokesman for William Knittel, said to the defendant Higbee, that if he would advance to William Knittel an additional $ 1000 with which to take up the Sarah F. Gentner note, on which the latter was pressing for payment, and agree that his daughter, Mrs. Patterson, might have a first mortgage on forty acres of William Knittel's land to secure a note of $ 750 which he owed her, and would agree to extend the time on the ten $ 1000-second-mortgage-notes until March 1, 1925, that he, William Knittel, would execute a deed of trust on his own land as additional security for the ten $ 1000-notes and the advancement of $ 1000 so desired, but that his wife would not join therein. This being assented to, the transaction was closed and the trust deed executed and filed that afternoon. In a short time an error in the description of forty acres of the land was called to the attention of defendant Higbee. He met William Knittel at Kirksville and called his attention thereto, made the correction therein, and Knittel reacknowledged the instrument and it was re-filed on November 21st. There was but one instrument and it bears the two filing marks. Other creditors of William Knittel, learning of this transaction, immediately and on November 21, 1923, began actions against William Knittel for indebtedness he owed them, and attached William Knittel's said land. On March 18, 1924, being just over four months after the first deed of trust was executed, and within less than four months after the attachment suits were filed, and within less than four months after the corrected deed of trust was...