Crews v. Lombard

• Decision Date: 15 February 1916
• Docket Number: No. 1524.,1524.
• Parties: CREWS v. LOMBARD.
• Court: Missouri Court of Appeals

182 S.W. 825

CREWS v. LOMBARD.

No. 1524.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by Gideon Crews against J. P. Lombard. From a judgment for plaintiff, defendant appeals. Cause transferred to Supreme Court.

E. R. Rombauer and Jos. T. Davis, both of St. Louis, for appellant. R. L. Ward, of Caruthersville, for respondent.

FARRINGTON, J.

This is a suit in equity to cancel a note and deed of trust on 140 acres of land in Pemiscot county, both executed by plaintiff, Crews, to defendant, Lombard, upon the ground of no consideration. The circuit court entered a decree in plaintiff's favor, and defendant has appealed.

Plaintiff's petition avers that he desired to borrow money on his land; that defendant Lombard was advertising that he would loan money on real estate in Pemiscot county; that application for a loan was duly made and abstract of title submitted; that plaintiff then executed a note, secured by a deed of trust, to the Union Central Life Insurance Company, for said loan; that on the said date plaintiff executed his note for $750 to defendant, Lombard, secured by a second deed of trust, and that this last-mentioned note was given as commission to defendant to secure the loan for plaintiff from the Union Central Life Insurance Company; that defendant kept the papers for several months and failed to secure the loan and get the money for plaintiff, but that defendant recorded both deeds of trust; that plaintiff was finally forced to get the money elsewhere, whereupon the Union Central Life Insurance Company canceled its note and satisfied the record as to its deed of trust, but that defendant failed and refused to deliver up the note for $750 or to satisfy the record as to said second deed of trust, so that the same is a cloud upon plaintiff's title; that plaintiff has recently sold the land and contracted to remove this cloud; and that said note for $750 and second deed of trust are wholly without consideration and should be satisfied of record. The prayer of the petition is as follows:

"Wherefore, premises considered, plaintiff prays the court that said note be ordered delivered into court and canceled, and that said note and deed of trust be declared null and void and of no effect, and that said deed of trust be released and for naught held, and that the record thereof be canceled and satisfied, and for general relief."

The answer avers that on or about October 19, 1912, plaintiff employed defendant as agent and attorney in fact to negotiate and procure a loan of $5,000 for 10 years on his land, and agreed in his application to furnish, as a condition precedent to the making of said loan, an abstract of title, showing an unincumbered fee-simple title in him, subject to the approval of the lender, and that he would secure an easement or right of way upon or adjoining his land, as a condition precedent to said loan; that defendant, acting as such agent and attorney in fact for plaintiff, secured the Union Central Life Insurance Company as lender, which corporation agreed to loan $5,000 to plaintiff upon the conditions set forth in the application; that said company was at all times ready, able, and willing to make said loan; that plaintiff failed to comply with said agreements and...