Comings v. Leedy
| Decision Date | 28 February 1893 |
| Citation | 21 S.W. 804,114 Mo. 454 |
| Parties | Comings, Appellant, v. Leedy et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
White & McCammon for appellant.
(1) The court erred in overruling the motion to strike out part of the separate answers. (2) The misrepresentations complained of, made by Onstott and Smallstig, were simply puffing their wares, promissory in their character, and not representations of any existing state of facts. Evidence of fraud must be clear and convincing. Dunn v. White, 63 Mo. 186; Jackson v. Wood, 88 Mo. 76; Keiser v Gammon, 95 Mo. 219. (3) The evidence required to impeach the certificate of the notary, even if she had denied its truth, must be something more than testimony of Mrs Leedy. Biggers v. St. Louis Mutual, 9 Mo.App. 210; Morrison v. McKee, 11 Mo.App. 594; Ray v Crouch, 10 Mo.App. 321; Riecke v. Westenhoff, 10 Mo.App. 358. (4) The deed of trust in question, however, was executed according to statute relating to conveyances by married women. It is regular in form and imports a consideration. And the consideration cannot be inquired into for the purpose of avoiding the instrument. Henderson v. Henderson, 13 Mo. 151; Draper v. Shoot, 25 Mo. 197; McConnell v. Brayner, 63 Mo. 461; Hollocher v. Hollocher, 62 Mo. 267; Bobb v. Bobb, 89 Mo. 419. (5) The void deed of a married woman may be ratified by a subsequent agreement if the ratification be in the form prescribed by law. Price v. Hart, 29 Mo. 171. (6) The evidence shows that there was a good consideration for both deeds of trust. The patent right was sold to Mr. Leedy. The wife gave deed of trust on her land to secure that debt. The second deed of trust was given for the same consideration. In the absence of fraud, it was a valuable consideration, passing to Leedy.
James W. Silsby, C. O. Buckley, F. P. Morgan and R. G. Campbell for respondents.
(1) The issues set up by defendant, Mary A. Leedy, in her amended answer clearly set forth equitable defenses which the circuit court fully heard and determined in favor of defendants as it should have done under the equitable defenses. Estes v. Fry, 94 Mo. 266; Durfee v. Moran, 57 Mo. 374; Allen v. Logan, 96 Mo. 591; Fontane v. Savings Inst., 57 Mo. 553. (2) Comings, Smallstig and Onstott were privies and in its findings the court committed no error, and found the allegations of fraud fully sustained as appears by decree. Keiser v. Gammon, 95 Mo. 217; Altringer v. Capeheart, 68 Mo. 441. (3) The certificate of acknowledgment of a married woman to a deed conveying her land is only prima facie, and when she gives evidence under oath the prima facie case is rebutted. Mays v. Price, 95 Mo. 603. (4) There being no bill of exceptions in this case, and there appearing no error upon the record proper, the judgment of the lower court should be affirmed as this court has none of the facts before it upon which the judge sitting as a jury based his decision, and so defendants pray.
This is an action of ejectment for the possession of lot 56, in Inwood Park addition to the city of North Springfield, Missouri. The petition is in the usual form. The defendants filed separate answers, alleging that the note and deed of trust under which plaintiff claims title were obtained by fraud and deceit, were without consideration, and also allege that the defendant Mary was the owner in fee of the lot at the time of the execution of the mortgage under which plaintiff claims title, that the mortgage was void, and that the note was obtained in furtherance of a fraudulent design to defraud and cheat defendants.
Plaintiff moved to strike out the separate answer of defendant Mary, which was overruled.
On the seventeenth day of March, 1886, one William A. Smallstig and John H. Onstott, claiming to be the owners of a patent right to certain improvements to what they called a "sad iron," by false and fraudulent misrepresentations upon which defendants relied as to its usefulness, salableness and practicability, sold to the defendant, A. G. Leedy, the territory of Colorado, at which time the defendant Mary executed to them in part payment of the purchase money her individual note for the sum of $ 1,000, payable in six months after its date, and secured the same by deed of trust on the lot in question, her husband, A. G. Leedy, joining with her in the deed of trust.
Afterwards, and before the note became due, the payees in the note transferred the same to the plaintiff Comings and indorsed on the back thereof, "Without recourse." Subsequently plaintiff through his agent, James B. Milner, solicited defendants to pay an increased rate of interest on the note, which they agreed to do, and gave the last note and deed of trust in lieu of the first, secured by their joint deed of trust on the same property, which they did under the belief at the time that they were simply contracting to pay an increased rate of interest, as was stated by Milner at the time.
Milner was made trustee in the last deed of trust and was acting throughout as the agent of plaintiff. On the eleventh day of February, 1888, after the last note became due, Milner sold the lot as trustee, and it was bought by plaintiff.
On the trial plaintiff read in evidence the deed of trust executed by defendants to Milner as trustee and also his deed as trustee to plaintiff; proved the value of the rents and rested.
Defendants then introduced evidence as follows:
First. Defendants to sustain the issue on their part introduced in evidence a general warranty deed from Arthur Ball and Allen A. Ball, conveying the land in controversy to Mary A. Leedy, deed dated the ninth of September, 1884. To the introduction of which deed the plaintiff objected, because the plaintiff had subsequently acquired all the title to the premises, and the deed offered in evidence by defendants is therefore immaterial. The objection was overruled and the plaintiff excepted.
Second. The defendant next offered in evidence a deed of trust dated the seventeenth day of March, 1886, executed by Mary A. Leedy and A. G. Leedy, her husband, conveying the premises in controversy to H. D. Silsby, trustee for W. C. Smallstig and John H. Onstott, cestui que trust; this deed of trust recites that it is given to secure a promissory note for $ 1,000 due six months after date to said Smallstig and Onstott, and signed by Mary A. Leedy. To the introduction of which deed of trust the plaintiff objected because irrelevant to the issue in this case. The objection was overruled and the plaintiff excepted.
Third. Defendants next offered in evidence a promissory note secured by the deed of trust last above mentioned, together with the indorsement thereon, as follows, to wit.:
New note given in lieu of this to A. C. Comings, May 14, 1887. To the introduction of which note and indorsement plaintiff objected; objection was overruled by the court and the plaintiff excepted.
Fourth. The defendant introduced Mary A. Leedy who testified as follows:
Witness then identified the patent right deed.
Fifth. The defendants then offered in evidence patent right identified by Mary A. Leedy, as follows:
Which deed was acknowledged in the usual form. To the introduction of which patent right deed plaintiff objected. The objection was by the court overruled and plaintiff excepted.
The testimony of Mary A. Leedy then continued as follows:
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