Denbo v. Boyd
| Decision Date | 22 May 1916 |
| Citation | 185 S.W. 236,194 Mo.App. 121 |
| Parties | J. W. DENBO, Appellant, v. HERBIE BOYD, ANNIE E. BOYD, TREXLER and HALL, H. E. WARFEL, WM. P. ELMER and PARLIN ORENDORF MACHINERY COMPANY, Defendants; WM. P. ELMER and H. E. WARFEL, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Dent County Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED AND REMANDED.
Case reversed and remanded.
McGee & Bennett for appellant.
William P. Elmer for respondents.
--This is a suit to foreclose a mortgage on 160 acres of land in Dent County. The maker of the secured note and others interested in the land were made parties defendant on constructive notice by publication, but only the present owner of the land, Warfel, and the holder of a second mortgage, Elmer, filed answer and defended the case. They won in the trial court and the plaintiff has appealed.
The answer alleges that defendant Warfel is in possession of the land and "that plaintiff's title under which he claims said mortgage is a forged and false title in that the deed from Richard M. Boyle to E. E. Young is a false and forged deed;" that the secured note was given as part of the purchase price of the land and contains a clause that if the title to said land of the maker of said mortgage and note should fail or prove void, then the note and mortgage should be void. This note was made by Herbie Boyd to Emery Tolley on the sale of this land by Tolley to Boyd and the clause referred to, after reciting that the note is given for part of the purchase price of this land, reads: "But in case the title under a deed this day made to me to said real estate by Emery Tolley and Myrtle Tolley, his wife, is void or voidable, then this consideration, for which this note is given, fails, and this note shall be void and of no effect."
The plaintiff had been the owner of this land and was the vendor of said Tolley and the vendee of Young, the grantee in the alleged forged deed. The evidence is sufficient to sustain a finding that Tolley, who had a deed from plaintiff, and sold and conveyed to Boyd, taking back this note and mortgage, was in fact acting for plaintiff in the transaction and plaintiff took the note and mortgage as on a sale of his own land though made to his man Tolley and assigned by him to plaintiff. Boyd, however, did not sell the land direct to the defendant Warfel, but there was an intervening owner, a real estate firm of Trexler and Hall, who sold and conveyed to defendant Warfel. The evidence also tends strongly to show that plaintiff, while the owner of this land and of course before he took this note and mortgage, was informed that there was much doubt as to the genuineness of his title and that there was a strong suspicion, at least that the recorded deed from Boyle to his grantor Young was a forgery; that this caused the plaintiff to sell the land soon thereafter through his man Tolley and thereby got this note and mortgage on the same. There is no evidence, however, that plaintiff was interested in the land any further or that he had anything to do with the sale by Boyd to Trexler and Hall, or Trexler and Hall to defendant Warfel. Both the defendant and Trexler and Hall bought subject to plaintiff's mortgage and their deeds so recite. The alleged forged deed from Boyle to Young is a warranty regular in form and acknowledgment. The abstract does not show but the evidence indicates that all the subsequent conveyances are quitclaim deeds.
The defendant Warfel says that when he bought the land the abstract showed a regular chain of title and that he, living in Illinois, as did the plaintiff and the intermediate grantee, had no knowledge or information as to any deed in the chain of title being forged. When he learned this later by advice of his attorney he set about to perfect his title. He did this by getting a squatter on the land to become his tenant and after two or three years brought suit and obtained a decree quieting title in him under our thirty year Statute of Limitations, section 1884, Revised Statutes 1909. This suit was against Boyle and his unknown heirs and some others alleged to be claiming some interest in the land. The plaintiff there, defendant here, alleged that he had been in possession of this land more than one year under color of title duly recorded. The defendant Warfel now claims title solely by reason of this decree and undertook to show, as defeating plaintiff's mortgage, that one link in his chain of paper title was a forgery and thereby destroy the whole chain subsequent to Boyle.
Several matters are discussed in the briefs, one of which is that in acquiring title by limitation of thirty years color of title is not necessary (Abeles v. Pillman, 261 Mo. 359, 168 S.W. 1180), although this defendant so alleged in the petition. This contention is correct, but defendant's color of title was the means by which he converted the possession of the squatter on the land, a mere intruder, into a "lawful possession," that is, the possession of one "claiming to own the same in good faith, believing that he is the owner." This color of title was the basis and proof of defendant's lawful possession on which his decree was based. Moreover, defendant's possession was through such squatter who became his tenant and in the absence of color of title defendant's possession would be limited to the part in actual possession of this tenant. The defendant's color of title, granting that the deed so claimed was a forgery, was an important factor in obtaining the decree.
We can agree with defendant that the grantee of a mortgagor of land is not in such relation to the holder of the mortgage as to forbid his acquiring and setting up an outstanding title to the land adverse to the mortgagee. [Bush v. White, 85 Mo. 339, 358; Cummings v. Powell, 97 Mo. 524, 536, 10 S.W. 819.] This, however, and the question whether defendant was holding adverse to the mortgagee may not be important as plaintiff's note explicitly contracted that if the title of the then mortgagor failed, the note would be void and of no effect.
The point on which defendant failed to sustain his defense is that there is no competent evidence that the Boyle deed to Young is a forgery. Boyle acquired title by deed dated October 16, 1872. The record does not show where Boyle resided other than the alleged forged deed dated December 15 1906, gives his residence as Pittsburg, Pennslyvania. The deed was acknowledged before Pearl Abernathy, a notary public, at East St. Louis, Illinois, with his notarial seal affixed. The only evidence bearing on the question of this deed being a forgery is that when plaintiff was informed of the rumor or suspicion that such was the case, he hunted up this notary and found him to be a "negro politician of East St. Louis, Illinois." Plaintiff testified that the negro...
To continue reading
Request your trial