Cooper v. Newell

• Decision Date: 31 December 1914
• Parties: HARRIETT COOPER v. A. G. NEWELL et al.; GEORGE W. PLUMER, Appellant
• Court: Missouri Supreme Court

172 S.W. 326

263 Mo. 190

HARRIETT COOPER v. A. G. NEWELL et al.; GEORGE W. PLUMER, Appellant

Supreme Court of Missouri, First Division

December 31, 1914

Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.

Affirmed.

H. L Shannon for appellant.

(1) Newell conveyed his half interest to his mother, A. G Newell. It is claimed by respondent that there was no consideration for this deed, and that the effect of the conveyance was to vest the legal title to the half interest in the land in A. G. Newell, as trustee, for J. P. Newell. A voluntary conveyance is subject to such a construction against an existing creditor, but not as against a subsequent creditor. Krueger v. Vorhauer, 164 Mo. 156; Caldwell v. Smith, 88 Mo. 44; Scudder v Morris, 107 Mo.App. 634. (2) Respondent introduced no evidence that there was no consideration paid by A. G. Newell to J. P. Newell for the undivided half interest in the land in controversy except that Mrs. Newell had no recollection of the transaction. They were partners in the loan, insurance, and real estate business, and J. P. Newell had the exclusive management of the same. Mrs. Newell acquiesced in whatever was proposed and done by her son. She received a monthly allowance out of the business, not in full satisfaction of her interest in the business, but on account. Whether the value of this land was charged to Mrs. Newell on the partnership account, we do not know, but the burden was on respondent to prove that there was no consideration for the conveyance, for the law presumes a consideration. 13 Cyc., 735. (3) When J. P. Newell executed the trust deed conveying the land in controversy to J. V. Koontz, as trustee to secure the $ 1000 note payable to Anna G. Newell, he had no interest in the land, and said trust deed created no lien on the land. To hold that it did would contravene the doctrine of merger. 16 Cyc. 665. (4) While Anna G. Newell would be estopped as against the respondent, Harriett Cooper, from asserting that the trust deed was not a lien on the land in controversy by the fact that she endorsed and delivered the note in controversy to the respondent, this doctrine is not available to respondent because it is not pleaded. Golden v. Tyer, 180 Mo. 196; Loving Co. v. Cattle Co., 176 Mo. 330; Casler v. Gray, 159 Mo. 588; Sanders v. Chartrand, 158 Mo. 352; Cockrill v. Hutchinson, 135 Mo. 67. (5) Mrs. Cooper purchased the note and deed of trust in controversy with notice of the fact that J. P. Newell had parted with his interest in the land covered by the deed of trust, the deed from him to his mother having been recorded. Sec. 2810, R. S. 1909. (6) Plumer's equities are at least equal to those of Mrs. Cooper, and being the holder of the legal title, he is entitled to protection. 23 Am. & Eng. Ency. Law (2 Ed.), p. 487. (7) Where it is sought to defeat a clear legal title of record by one having a mere equitable title, on the ground that the equities of the latter were known to the former at the time of acquiring the legal estate, the allegation of notice must be established by clear and satisfactory proof, so as to affect the conscience of the purchaser, and to fix upon him the imputation of mala fides. 39 Cyc. 1785; Hendricks v. Callaway, 211 Mo. 536. If instead of making the note secured by the trust deed in controversy to A. G. Newell, J. P. Newell had made it to the respondent, Mrs. Cooper, and her action to foreclose had been against A. G. Newell, the facts of this case would not warrant a recovery. How, then, can a recovery be sustained against George W. Plumer, the appellant? Youngblood v. Vastine, 46 Mo. 239.

McReynolds & Halliburton for respondent.

(1) The record showing that the conveyance from J. P. Newell to Anna G. Newell was made and filed for record, without any consideration for same and without knowledge or consent, there was no delivery of said conveyance and the title did not pass but remained in J. P. Newell. Cravens v. Rossiter, 116 Mo. 338; Powell v. Banks, 146 Mo. 620; Seibel v. Higham, 216 Mo. 121; Chambers v. Chambers, 227 Mo. 262; Terry v. Glover, 235 Mo. 544. (2) While the record title to the land was in Anna G. Newell, the legal title was in J. P. Newell. See authorities under point I and testimony of A. G. Newell. (3) There was no place to plead estoppel against Anna G. Newell in this case, as she was not making any claim whatever, but stood admitting the allegations of plaintiff's petitions. If there is any place for any one to plead estoppel in this case it is for appellant Plumer. (4) A. G. Newell by her individual testimony shows that she paid no consideration for the conveyance from J. P. Newell. (5) At the time Plumer bought this land from J. P. Newell he was furnished with an abstract of title, showing the deed of trust under which Harriett Cooper claimed, which was of itself sufficient to constitute notice, and he was not a purchaser in good faith without notice of the claim of respondent against this land, and he took the title (if any) subject to her adverse claim. In equity one who takes with notice of an adverse claim takes subject thereto, and to constitute such notice anything tending to put a prudent man on the alert is sufficient. Richmond v. Ashcraft, 137 Mo.App. 199; Lee v. Bowman, 55 Mo. 400; Marlow v. Leiter, 87 Mo.App. 584; Smith v. Mount, 149 Mo.App. 674; Rhodes v. Outcalt, 48 Mo. 367; Meier v. Blume, 80 Mo. 183; Roan v. Winn, 93 Mo. 503; Drey v. Doyle, 99 Mo. 467; Barrett v. Davis, 104 Mo. 561; Hill v. Tissier, 15 Mo.App. 306. (6) The question of actual notice to Plumer is one for the trier of the fact. Masterson v. Railroad, 5 Mo.App. 64; Hill v. Tissier, 15 Mo.App. 307; Muldrow v. Robinson, 58 Mo. 331. Judge Blair having tried the fact and found that Plumer had notice of Mrs. Cooper's claim and there being substantial evidence to support the finding, this court will sustain the finding of the trial court. (7) The burden is not on plaintiff to show that Anna G. Newell paid no consideration for the deed from J. P. Newell but is upon respondent Plumer. Kier v. Birnie, 25 Ark. 225; Loyds v. Lynch, 25 Pa. 419, 70 Am. Dec. 137; Blaesi v. Blaesi, 14 N.Y. Civ. Proc. 216. (8) There is no ground for the doctrine of merger in this case. (9) The appellant assumes that inquiry by Plumer or his agent would have been futile. If he had inquired only of the Newells it might have been, but J. V. Koontz was in the city of Carthage and could easily have been found and interviewed. Inquiry by Plumer of the Newells would not have been sufficient to protect him as an innocent purchaser. Dudley v. Witter, 46 Ala. 694; Skeel v. Sprakes, 8 Paige (N.Y.) 196; Little v. Giddings, 47 Tex. 109. (10) The First National Bank of Carthage and J. D. Perkins were the agents of Plumer in closing the trade with Newell and notice to them or either of them was notice to Plumer. Meier v. Blume, 80 Mo. 183.

BLAIR, C. Brown, C., concurs in the result. Bond, J., concurs in result.

OPINION

BLAIR, C. --

From a decree of the circuit court of Jasper county establishing the lien of a deed of trust and foreclosing the same, defendant Plumer appeals.

The facts are that in 1899 Plumer and J. P. Newell of the firm of A. G. Newell & Son, became the owners, as tenants in common, of the north half of the southeast quarter of section 7, township 29, range 31, Jasper county, Missouri. In February, 1901, J. P. Newell and wife executed and recorded a deed to A. G. Newell for a one-half interest in this land. A. G. (Anna G.) Newell was the mother and partner of J. P. Newell but had retired in 1898 from active participation in the transaction of the partnership business, being paid monthly an agreed sum by her son. She knew nothing of the execution or recording of the deed to her until called upon to transfer the title to appellant in 1907, and had paid no consideration for the deed. In December, 1905, J. P. Newell and wife executed the trust deed in question, conveying the land above described to J. V. Koontz, as trustee for A. G. Newell, to secure a note for $ 1000, due December 22, 1910. Soon thereafter A. G. Newell indorsed the note to J. V. Koontz, trustee in the deed of trust, and indorsed the coupons in blank; and in a short time, and prior to June 22, 1906, Koontz indorsed the note to the plaintiff, Mrs. Harriett Cooper, Newell having sold it to her for face value. The interest was paid regularly to plaintiff by A. G. Newell & Son. The firm, J. P. Newell being the active member, was and for some time had been loaning money for both plaintiff and appellant Plumer. Mrs. A. G. Newell, Plumer and plaintiff had been reared together in Franklin, Pa., and plaintiff and Plumer were also personally acquainted with J. P. Newell and with each other. In 1907, J. P. Newell wrote Plumer, who then lived in Ohio, that he desired to sell him the half interest in the land; Newell wrote that he wanted to sell as he needed the money. Plumer then had no actual knowledge of the existence of the deed from J. P. Newell to A. G. Newell. He testified he authorized the First National Bank of Carthage to represent him "in this deal with Newell, and also authorized them to pay Newell $ 2000 for this land when he delivered the deed -- when he made a good deed," and directed them to have their attorney examine the title and to accept the deed if everything was all right. Plumer wrote the bank he had bought the land from Newell and instructed them to pay Newell out of a fund of $ 3700 Newell had collected for him. The bank had its attorneys examine the abstract of title. The abstract they examined showed the deed of trust J. P. Newell and wife had executed to A. G. Newell, but showed no release thereof, and, as a matter of fact, it had not been released. The attorneys certified that the abstract showed...