Cuthbert v. Holmes

• Citation: 14 S.W.2d 444
• Decision Date: 02 March 1929
• Docket Number: No. 27591.,27591.
• Parties: CUTHBERT v. HOLMES.
• Court: Missouri Supreme Court

14 S.W.2d 444

CUTHBERT v. HOLMES.

No. 27591.

Supreme Court of Missouri, Division No. 2.

March 2, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Suit by C. Morgan Cuthbert against George C. Holmes. Judgment for plaintiff, and defendant appeals. Affirmed.

A. J. Haverstick, of St. Louis, for appellant.

McDonald & Just, of St. Louis, for respondent.

DAVIS, C.

This is a suit in equity to ascertain and determine title to a real estate lot in the city of St. Louis, and to declare a certain quitclaim deed null and void, and to remove it as a cloud on plaintiff's title. The trial court entered a decree and judgment in favor of plaintiff, and defendant appealed.

The petition, after describing it as "Lot 17 of Chamberlain Park and in City Block 3810 of the City of St. Louis, together with improvements thereon," alleged that plaintiff owns the lot in fee simple and is in possession of it, and that defendant claims adversely to him; that on December 18, 1917, defendant loaned him $800 on his note of even date, payable four months after date; that as security therefor, on December 19, 1917, he executed to defendant a quitclaim deed to said lot; that on or about maturity plaintiff paid and discharged said note in full, and defendant canceled and delivered said note marked paid to plaintiff, but he did not deliver to plaintiff said quitclaim deed; that on March 16, 1925, defendant recorded said quitclaim deed without notifying plaintiff, and defendant claims the lot as his property.

In his answer defendant admitted the execution of the quitclaim deed and alleged that he owns the lot in fee simple.

Plaintiff alone introduced testimony, the defendant standing on the case as made by plaintiff. The evidence adduced warrants the finding that on the lot in question plaintiff's father erected a home in 1886, and that plaintiff was reared and lived therein until it was damaged by fire shortly before the trial. Prior to 1917, plaintiff's father and mother executed a quitclaim deed to Dr. Fahlen, their son-in-law and the husband of plaintiff's sister, to act as security for an advancement or loan of $800 to the father. At the same time plaintiff's mother advanced $700 and defendant $240 to plaintiff's father. Plaintiff, his mother, his sister, and Dr. Fahlen, her husband, resided in the house thereon. His father went to Washington first and then to Lockport, N. Y. It seems that Dr. Fahlen needed money to go to Arizona, due to illness. Plaintiff borrowed the sum of $800 from defendant and gave it to Dr. Fahlen, who executed a quitclaim deed to the lot to plaintiff, and plaintiff thereupon executed a quitclaim deed to the lot to defendant, dated December 19, 1917, which was to act as security for the payment of the $800 loan to plaintiff by defendant, as evidenced by a note for $800, dated December 18, 1917, which plaintiff paid to defendant on or about maturity, and which defendant delivered to plaintiff marked paid. Plaintiff testified: "At the time of the loan the question of security arose. Mr. Holmes mentioned the fact that there was already existing a first and second deed of trust upon the property and it would be easier to execute a quitclaim deed to the property as security which he would keep and not file. Quitclaim deed was executed by me in place of deed of trust." The first and second deeds of trust referred to were, respectively, for the sums of $5,000 and $1,000. After the payment of the $800 note, plaintiff borrowed $1,000 from defendant to take up the second deed of trust, which he said was done; but plaintiff testified that he paid to defendant the sum of $1,000 thus borrowed.

Plaintiff stated that nothing further was said by them as to the consideration of the deed. When he paid and received the $800 note, he neither asked for nor received the quitclaim deed, as he had thorough confidence in defendant's honor and integrity and he did not think anything about the deed. Defendant at that time was plaintiff's employer as well as his cousin, and represented in St. Louis the Lackawanna Steel Company. Their relations were friendly and cordial, and plaintiff and family consulted defendant.

Plaintiff stated that on October 16, 1925, in negotiating a new loan, he had occasion to examine the restrictions on the lot, and it was discovered that defendant had recorded the quitclaim deed from plaintiff to him on March 16, 1925, more than seven years after its delivery and long after the $800 note had been paid. During the period from 1917 to October, 1925, plaintiff continued to live in the house with the family and paid taxes, insurance, and repairs, and considered that the property belonged to him.

The defendant answered that he owned an absolute title to the property by virtue of the quitclaim deed to him. The cross-examination of plaintiff shows that defendant turned over or gave to plaintiff $500. There is no showing of when it was done, or for what purpose, or that it was connected with the real estate, or that it was a loan and not a gift or bonus. Plaintiff, however, testified that he owed defendant nothing and that defendant had never demanded any money of him.

The cross-examination also shows that defendant loaned plaintiff $1,000, or assumed the second deed of trust for $1,000 on the property; but plaintiff testified he had paid defendant this amount.

The cross-examination showed that defendant advanced plaintiff's father on February 17, the sum of $240, and plaintiff said he had never paid defendant the said sum of money.

At the time of the trial it developed that the lot and improvements thereon were valued at $15,000. Other facts, if any, will be adverted to in the opinion.

I. While a proceeding to ascertain and determine title may be either a suit...