Cory v. Conqueror Trust Co.

• Decision Date: 07 October 1935
• Docket Number: No. 5480.,5480.
• Citation: 86 S.W.2d 611
• Parties: CORY v. CONQUEROR TRUST CO.
• Court: Missouri Court of Appeals

86 S.W.2d 611

CORY v. CONQUEROR TRUST CO.

No. 5480.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be reported in State Reports."

Action by W. J. Cory against the Conqueror Trust Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

R. A. Pearson, of Joplin, for appellant.

Grover C. James, of Joplin, for respondent.

ALLEN, Presiding Judge.

This cause comes to us on appeal by plaintiff from the circuit court of Jasper county, Mo.

The petition is as follows:

"Plaintiff for cause of action states that the defendant at all times hereinafter mentioned was and now is a corporation organized and existing under the laws of the State of Missouri.

"That defendant became indebted to plaintiff for money had and received, upon the dates and in the amounts as follows: August 11, 1927, in the sum of $100.00, January 1, 1928, in the sum of $207.75, and that though often requested defendant has failed and refused to pay same to plaintiff, and the same is due and payable together with interest thereon at the rate of six per cent per annum from said respective dates amounting to date to $97.50.

"For that on said August 11, 1927 defendant pretending to act in the capacity of executor and trustee of the estate of Wm. Houk, deceased, contracted to convey to plaintiff upon certain payment to be made by him to defendant, all of the West half of the Southeast quarter of the Southwest quarter of Section 26, Twp. 28, R. 33, Jasper County, Missouri, and while having in its possession instruments and withholding same from record affecting and disclosing the true title and interest of the right owners of said land, nevertheless falsely and fraudulently represented to plaintiff that defendant had good title and right and authority to make conveyance of same in accordance with its contract, and plaintiff induced thereby and believing and relying upon said false representations entered into said contract with defendant to purchase from it said tract of land and made said payments to defendant pursuant thereto. But plaintiff says that defendant had no title, right or authority to convey or contract the conveyance of said land as aforesaid, and said contract was without authority and ultra vires it as such executor or trustee, and is wholly void and unenforceable, and plaintiff has gained and obtained nothing by it. That the knowledge of said falsity and fraud was not acquired by plaintiff till long after June, 1928, and defendant repeatedly since and until the present has delayed making repayment and promising same if convinced and if found it was without the right and title to support its contract.

"Wherefore, plaintiff, prays judgment in said sum of $307.75, with interest at the legal rate from said dates of payment, together with its costs and for all other proper relief."

The answer of the defendant was a general denial.

The trial court sustained respondent's demurrer to the evidence, on the ground that under the pleading, the law, and the evidence, appellant was not entitled to recover. Appellant took a nonsuit, with leave to file motion to set the same aside, which motion was by the court overruled, and the cause was appealed to this court.

On August 11, 1927, appellant entered into a written contract with the estate of Wm. Houk, deceased. This contract was signed in behalf of the estate by Frances H. Houk, executrix and trustee, and the Conqueror Trust Company, coexecutor and trustee (the respondent herein), by which said trustee agreed to sell to appellant the W. ½ of the S. E. ¼ of the S. W. ¼ of 26-28-33, in Jasper county, being 20 acres of land, at an agreed purchase price of $1,750, on which price $100 was paid by appellant at the time of the execution of the contract, and, as specified therein, the balance of $1,650 was payable in semiannual installments of $150 each, beginning January 1, 1928. The contract amongst other things provided as follows: "When the total amount of said deferred payments and interest thereon shall have been paid, as therein provided, and all special assessments, levies or liens shall have been paid and discharged by buyer, sellers shall execute and deliver to the buyer a deed, covenanting that the sellers have not in any way incumbered said premises or permitted them to become incumbered and that they will warrant and defend said premises against all claims whatsoever of any person or persons whatsoever, claiming by, through or under said sellers and said sellers shall furnish to said buyer an abstract to said real estate."

Following the execution of the contract, appellant went into possession of the land in suit, and remained in possession thereof until the filing of this action.

In addition to the $100 paid at the time of the execution of the contract, appellant also paid an additional $207.75, on or about January 1, 1928, making a total of $307.75, paid under said agreement.

Appellant offered, over the objection of respondent, and the court received in evidence, Exhibits numbered from 1 to 10, inclusive, which are hereinafter mentioned.

The record shows that of date July 16, 1906, by warranty deed, Laura Ost conveyed to Patrick Hennessy and William Houk the S. E. ¼ of the S. W. ¼ of Sec. 26, Tp. 28, R. 33, in Jasper County, Mo.

That under the terms of a contract dated July 5, 1906, A. H. Rogers and his associates therein designated as first parties, and Patrick E. Hennessy and William Houk, designated as second parties, and the Conqueror Trust Company, trustee, as third party, by which first and second parties agreed to convey 80 acres of land to the said trustee, for the purpose of having same improved and dedicated as an addition to the city of Joplin, and sold in town lots. Said contract recites that A. H. Rogers and his associates were the owners of a 40-acre tract, which adjoined the 40-acre tract to be acquired by Hennessy and Houk, which they, Hennessy and Houk, were to and did purchase from Laura Ost, by deed dated July 16, 1906, so that the two adjoining 40-acre tracts should be put into one scheme for the purposes stated in said contract. The contract further provided that the said A. H. Rogers and his associates and Hennessy and Houk convey the fee-simple title to both tracts, to said trustee, for the purposes stated therein, and thereafter on September 4, 1906, Hennessy and Houk conveyed their 40-acre tract to the Conqueror Trust Company, as trustee, The record does not show but it must be assumed that A. H. Rogers and his associates likewise conveyed their adjoining 40-acre tract of land to the trustee under their contract. The Conqueror Trust Company, acting as trustee under said contract and by the terms thereof, became vested with the title to the 80 acres, which included the 20-acre tract agreed to be sold by the Houk estate to the plaintiff herein, with full power to plat same into town lots, dedicate streets and alleys, and to place same upon the market and to make contracts for the sale and conveyance thereof. It was provided in this contract that said trustee should hold the title to said land for a term of four years from the date of the contract and at the expiration of said term should convey to the first and second parties, under the contract, or their heirs and assigns "according to their respective interests, all remaining portion of said real estate which had not been deeded to purchasers or contracted to be sold under the terms of the contract." During this four-year term, under date of October 26, 1909, Hennessy and wife made a written transfer and assignment to J. E. Shephered of all their right, title, and interest in and to the contract, which assignment was made at the bottom of the original contract, following the signatures, and which assignment was duly acknowledged by Hennessy and wife. This contract, with said assignment thereon, was filed for record March 5, 1931, more than two years prior to the filing of the plaintiff's petition herein.

The record further shows that on January 26, 1909, a judgment was entered in the circuit court of Jasper county, Mo., in favor of D. C. Wise Coal Company, as plaintiff, against P. W. Hennessy, as defendant, for $111.69. This judgment was rendered during the time that the Conqueror Trust Company, as trustee, was holding title to the 20-acre tract of land in question, under the contract of July 5, 1906, between A. H. Rogers and associates and Hennessy and Houk and the trustee. Under an execution issued upon this judgment, the sheriff of Jasper county, on May 3, 1910, levied upon "all the right, title and interest" of said P. W. Hennessy in the S. E. ¼ of the S. W. ¼ of Sec. 26, Tp. 28, R. 33, in Jasper county, and on May 28, 1910, sold the property so levied on under said execution to Julius C. Miller, at the price of $8.50, and by sheriff's deed dated May 21, 1910, and recorded June 6, 1910, conveyed same to Miller under said execution sale. The execution sale was made and the sheriff's deed executed, delivered, and recorded after Hennessy and wife had assigned to Shephered under date of October 26, 1909, all their right, title, and interest in and to the contract, wherein the Conqueror Trust Company, as trustee, held title to said property; but the execution sale was had and the sheriff's deed executed and delivered prior to the expiration of the four-year period provided for in said contract. Under date of February 27, 1931, Victor and Julius Miller, purporting to act as trustees of the estate of J. C. Miller, by quitclaim deed, conveyed the 40-acre tract of land described in the sheriff's deed to A. Arteburn. This quitclaim deed was recorded March 20, 1931. It is the contention of appellant that the title thus acquired and claimed by Arteburn under this quitclaim deed creates a defect in the title of the estate of William Houk, and is the defect complained of by plaintiff in his petition herein....