Dougherty v. Strong

• Decision Date: 26 February 1926
• Citation: 281 S.W. 445,313 Mo. 27
• Parties: MARGARET C. DOUGHERTY v. EDWARD J. STRONG, Appellant
• Court: Missouri Supreme Court

281 S.W. 445

313 Mo. 27

MARGARET C. DOUGHERTY v. EDWARD J. STRONG, Appellant

Supreme Court of Missouri

February 26, 1926

Rehearing Denied March 20, 1926.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Lathrop Morrow, Fox & Moore, Cyrus Crane and Winston H. Woodson for appellant.

The plaintiff failed to prove that the transaction was fraudulent, therefore, the decree and judgment of the court should have been for the defendant. (1) The court erred in allowing Charles L. Harris to testify. Sec. 5410, R. S. 1919; Smith v. Smith, 201 Mo. 533; Herndon v. Yates, 194 S.W. 46; Danciger v. Stone, 278 Mo. 19; Edwards v. Scharff, 279 Mo. 78; Harding v. Trust Co., 276 Mo. 136; Chapman v. Dougherty, 87 Mo. 626; Lieber v. Lieber, 239 Mo. 1; Leavel v. Ry. Co., 266 Mo. 151; Diggs v. Henson, 181 Mo.App. 34. (2) Presumption of innocence. Chandler v. Hedrick, 187 Mo.App. 664; Hendricks v. Calloway, 211 Mo. 560; State ex rel. v. Taylor, 298 Mo. 474; Nelson v. Jones, 245 Mo. 579; Rice v. Ins. Co., 176 S.W. 1113; Chapman v. McIllwrath, 77 Mo. 38; Skinner v. Davis, 271 S.W. 992.

P. E. Reeder, Miller, Winger & Reeder and S. J. McCulloch for respondent.

(1) Charles L. Harris was a competent witness. Bates v. Frecht, 89 Mo. 121; Hamra v. Orten, 208 Mo.App. 41; Allen Estate Assn. v. Fred Boeke & Son, 254 S.W. 865. (2) Plaintiff's case is abundantly established by the other evidence in the record, without regard to the testimony of Harris. King v. Moon, 42 Mo. 551; Mankeimer v. Harrington, 20 Mo.App. 297; Massey v. Young, 73 Mo. 260.

OPINION

Walker, P. J.

This is a suit in equity brought in the Circuit Court of Jackson County at Kansas City, to divest the defendant of the title to a parcel of land in Kansas City, described as "Lot 61, Wenzel Garden, Addition to said city," or by its street number, "2727 Kensington Avenue." Upon a hearing the court entered a decree awarding the possession of the property to the plaintiff, from which judgment the defendant appeals.

The Pleadings: -- The averments of the petition are in effect as follows: That plaintiff was the owner of a promissory note for $ 600, secured by a deed of trust on the property in question; that the maker of the note and the deed of trust defaulted in the payment of the note, and the plaintiff delivered the note to her agent, one R. W. Van Trump, for collection; that Bertha O. Strong, the wife of the defendant, was in the employ of Van Trump and assisted him in the handling of the plaintiff's property; that at the time of the filing of this suit Van Trump and Bertha O. Strong were dead, the former having died in June and the latter in May, 1919; that Van Trump, while transacting plaintiff's business, directed the trustee in the deed of trust to advertise the property for sale and at the sale bought it for the sum of one hundred dollars and had the trustee make and deliver to him a deed to the property, which he had recorded February 26, 1918; that Van Trump paid nothing to the trustee at the time he bid in the property or at any other time; that the expenses of this sale he paid out of money in his hands belonging to the plaintiff; that thereafter Bertha O. Strong informed the plaintiff that the property had been sold for seven hundred dollars, when in truth and in fact no sale of the property had in good faith been made, but the said Van Trump held the title to the property in trust for the plaintiff; and in order to deceive her conveyed it by warranty deed to Charles L. and Cora May Harris, husband and wife, who paid no consideration therefor and they in turn conveyed it to Bertha O. Strong and her husband, Edward J. Strong, the defendant, by warranty deed, July 27, 1918, and that no consideration for this transfer passed between the parties thereto; that Bertha O. Strong, being dead, the title to said property is now vested in the defendant, Edward J. Strong, subject to a deed of trust to secure a note of $ 500, borrowed upon said property by Edward J. Strong and his wife, and that the defendant Edward J. Strong took title to the property with full knowledge of this entire transaction, including the fact that Van Trump held title to said property in trust for the plaintiff. The plaintiff therefore prays that the defendant Edward J. Strong be adjudged and decreed to hold title to the property in trust for the plaintiff, and that an order may be made directing the defendant to execute a deed conveying the property to the plaintiff and to account to her for the sum of five hundred dollars borrowed, by defendant and his wife, for which said property was pledged as security, and for the rents and profits accrued since the title to same was conveyed to the defendant. The answer and the reply were general denials.

The Facts: -- Plaintiff testified that Van Trump, from the summer of 1917 to the date of his death in June, 1918, was employed by her in handling her real property in Kansas City; that Bertha O. Strong during all of this time was his secretary and that her salary was paid by the plaintiff; that plaintiff delivered the six-hundred-dollar note secured by a deed of trust to Van Trump for collection.

In connection with plaintiff's testimony there was introduced in evidence as exhibits the note for six hundred dollars; the deed of trust on the land in controversy to secure the payment of the note; the notice of the trustee's sale; proof of publication, and the trustee's deed to Van Trump and a letter from Bertha O. Strong to the plaintiff reporting the sale of the property at the trustee's sale.

Charles L. Harris, witness for the plaintiff, knew Van Trump and Bertha O. Strong, who at the time were managing the plaintiff's property; that Van Trump told him he had a piece of property at 2727 Kensington Avenue he wanted to sell to Mrs. Strong, but didn't like to make a direct transfer to her, and asked Harris if he would not permit the use of his name as grantee in a deed from Van Trump to him, whereupon Harris was to transfer the property to Mrs. Strong. Harris finally, for accomodation, acceded to the request, and Van Trump and his wife made a warranty deed of the property to Harris and wife for "one dollar and other valuable considerations." A few days later Harris and wife in turn, as requested by Van Trump, conveyed the property to Bertha O. and Edward J. Strong, her husband for "one dollar and other valuable consideration." Harris paid nothing for the property transferred to him by Van Trump and wife, nor did he receive anything when he and his wife conveyed it to Bertha O. Strong, and her husband, the defendant. That the property described in these deeds was at 2727 Kensington Avenue, and during this entire transaction Van Trump was handling the plaintiff's property and Bertha O. Strong was his assistant.

M. H. Winger, witness for the plaintiff, testified that he was familiar with the signatures of Van Trump and Bertha O. Strong and knew Van Trump was in charge and control of plaintiff's securities and real property in Kansas City from July or August, 1917, and down to the time of his death; that Bertha O. Strong assisted him in the management of this property and that her salary for such services was paid by the plaintiff; that the note of six hundred dollars involved in this controversy was delivered to Van Trump as a part of plaintiff's property to be managed by Van Trump, and that the deed of trust to secure the payment of said note was foreclosed on the property at a trustee's sale and was bought by Van Trump for $ 100. Several other witnesses testified to substantially the same facts.

A number of exhibits consisting of letters, book entries, reports and accounts were introduced in evidence, the purport of which was to show the manner in which the plaintiff's affairs were conducted by Van Trump and Bertha O. Strong. By way of illustration, on February 15, 1918, Bertha O. Strong wrote a letter to the plaintiff, residing in Washington, D. C., in which the writer reports the sale of the property in controversy under the deed of trust, and states that "the title was taken in the name of Van Trump so that the owner of the property could not redeem it under the statute." Neither the name of the purchaser, nor the price at which the property was sold, was stated. On the 14th day of August, 1918, Bertha O. Strong wrote another letter to the plaintiff in which she stated that the property had been sold for seven hundred dollars. The expenses of this sale and other items purporting to have been incurred in the managing of the property in question was charged to the account of the plaintiff and deducted from the amount of her credits as shown by the books kept by Bertha O. Strong, amounting to three hundred dollars and seventy-three cents. At the time the letter to plaintiff of August 14, 1918, was written, Van Trump, without consideration, had transferred the property in question to Harris and wife and they had conveyed the same, likewise without consideration, to Bertha O. Strong and her husband, the defendant. Further than this, it appears that Bertha O. Strong charged the plaintiff a commission of one hundred and twenty-five dollars for making this purported sale of plaintiff's property to Van Trump, which ultimately resulted, as stated, in the transfer of the paper title in the same to Bertha O. Strong and defendant, through Harris and wife as convenient conduits. While thus invested with the title Bertha O. Strong wrote the letter of August 14th to the plaintiff in this language:

"The house at 2727 Kensington is sold, got the cash for it $ 700. And we were in luck, there was a sewer bill of $ 80, and a paving bill of $ 105 that had to be paid or they would take final judgment on the property, we settled the bill of $ 80 and the

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