Crawford v. C. Aultman & Co.

• Decision Date: 25 May 1897
• Court: Missouri Supreme Court
• Parties: CRAWFORD v. C. AULTMAN & CO. et al.

40 S.W. 952

139 Mo. 262

CRAWFORD v. C. AULTMAN & CO. et al.

Supreme Court of Missouri, Division No. 2.

May 25, 1897.

ASSIGNMENT OF MORTGAGE — BONA FIDE PURCHASER — PARTIES — JUDGMENT.

1. Where a note is acquired for value and in good faith before maturity, a deed of trust securing it, and which passes as an incident thereof, is, like the note itself, discharged from all equities existing between the original parties.

2. In a suit to cancel for fraud a note, and a deed of trust securing it, one to whom defendant has assigned the same is a necessary party.

3. Where the petition alleges that the execution of a note and deed of trust to defendant was procured by fraud, and asks merely for cancellation thereof, a money judgment against defendant for the amount of the note and interest is unwarranted, though the note and deed have been transferred to a bona fide purchaser, who is not a party.

Appeal from circuit court, Barton county; D. P. Stratton, Judge.

Suit by Sarah A. Crawford against C. Aultman & Co. and another. From the decree, both plaintiff and defendant Aultman & Co. appeal. Reversed.

Robinson, Cole & Burnett, for appellants. McCluer & Bowling, for respondent.

BURGESS, J.

This is a suit in equity, the object being, as appears from the allegations of plaintiff's petition, to set aside and cancel a certain note for $823, executed by plaintiff to C. Aultman & Co., on the 15th day of September, 1891, due 90 days after its date, and a deed of trust executed at the same time by her to one H. H. McCluer, as trustee for said Aultman & Co., on a tract of land in Barton county, Mo., to secure its payment, upon the ground that they were obtained by fraud and fraudulent representations. The trial resulted in a judgment and decree by which Aultman & Co. were required to pay to plaintiff the principal of said note, together with 8 per cent. interest on the same from its date to its maturity, which amounted to $836, and an order that execution issue against said company therefor. Both plaintiff and Aultman & Co. appeal. The material allegations of the petition are as follows: "Plaintiff states: That heretofore, to wit, on the 15th day of September, 1891, she was the owner in fee of a certain tract of land, situated in the county of Barton, in said state, of the value of fifteen hundred dollars. That said land was bought with the proceeds of life insurance of her husband, now deceased, taken out and made payable to her at his death. That defendants, desirous of obtaining possession of said land, fraudulently and wickedly devised a scheme by which they might obtain possession thereof, acquire a lien thereon, and acquire the title thereto, without paying to plaintiff the value thereof. That said land is described as follows, to wit: The south half of the northwest quarter of section No. 32, except twenty acres off the east side thereof, and also the north half of the northwest quarter of Sec. No. 32, except twenty acres off the east side thereof, and except also ten acres off the west side thereof, all in Twp. No. 31, of range No. 32, containing in all one hundred and ten acres, more or less. Plaintiff states: That she is, and was at the date aforesaid, in bad health. That she is the mother of five children, all under the age of eighteen years. That within the past six months she lost her husband by death. That by reason of the cares and responsibilities upon her thrown, and by reason of the mental suffering to her caused by her husband's death, as aforesaid, and by reason of her ill health, as aforesaid, she is and was incapacitated from carefully and properly attending to business. That the defendant C. Aultman & Co., by their agent, one Geo. E. Bowling, taking advantage of plaintiff's said incapacity, wickedly, falsely, and fraudulently did represent to the plaintiff that they were possessed of and held a legal, valid, and subsisting claim against her said above-described land; that said claim would be at once enforced against said land, and the land sold to pay the same; that by plaintiff executing a deed of trust upon said premises for the use and benefit of said C. Aultman & Co., for the sum of eight hundred and twenty-three dollars, plaintiff would save her said land, otherwise it would be lost to her; that they would serve papers on her, the same as an execution, immediately. That, after the representations made as aforesaid were made as aforesaid, plaintiff asked the said Geo. E. Bowling, agent as aforesaid, if he would not give plaintiff time to consult an attorney, to which said Bowling replied that, if plaintiff did not execute the deed of trust on the land, he would have papers served to take the land away from her immediately; that, if plaintiff consulted an honorable attorney, such attorney would tell plaintiff the same that he had told her; that, if plaintiff consulted a dishonorable attorney, such attorney would advise her to fight the claim for the sake of the fees; that he (Bowling) was advising plaintiff for her best interests, just as if she was his mother or sister; that he was an honorable man, and a lawyer, and thereupon named John Dickinson and Mr. ____ Letton and other citizens of high repute, and neighbors of plaintiff, as persons knowing him (Bowling) to be a lawyer and an honorable man; that, by plaintiff executing a deed of trust on said premises for the use and benefit of said C. Aultman & Co., plaintiff would save a great amount of money, and would be held harmless from a large amount of costs and expenses, and would thereby gain a position of security and safety that sh...