Dudley v. Waldrop

• Decision Date: 11 March 1916
• Docket Number: No. 1427.,1427.
• Citation: 183 S.W. 1095
• Parties: DUDLEY et al. v. WALDROP.
• Court: Missouri Court of Appeals

183 S.W. 1095

DUDLEY et al. v. WALDROP.

No. 1427.

Springfield Court of Appeals. Missouri.

March 11, 1916.

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

Action by L. M. Dudley and another against Susie Waldrop. From a judgment for defendant, plaintiffs appeal. Affirmed.

C. E. Bragg, of Caruthersville, for appellants. C. G. Shepard and Everett Reeves, both of Caruthersville, for respondent.

ROBERTSON, P. J.

This action was commenced March 15, 1913, and plaintiffs' petition is one in ejectment to recover possession of 40 acres of land in Pemiscot county. The defendant's answer alleges that one Frank W. Dudley, who is the brother of the plaintiff L. M. Dudley and the son of the plaintiff M. F. Dudley, on September 29, 1910, for a consideration of $2,600, conveyed the said land to her by a warranty deed with covenants against incumbrances; that the purchase price of said land was paid, $600 in cash and the balance in five notes of $400 each, dated September 26, 1910, and due on the 15th day of November of each of the five succeeding years, secured by a deed of trust, and that defendant paid the sum of $100 on the first of said notes; that she defaulted, and the deed of trust given to secure the balance of the purchase price was foreclosed December 14, 1912; that at the time Frank W. Dudley sold her the land and executed the warranty deed there was then outstanding the deed of trust given by him to secure an indebtedness of his amounting to $2,500, which was not paid off at the time of said foreclosure; that at the time she bought the land the said Frank W. Dudley fraudulently represented that it was free of incumbrances; that she knew nothing of this prior deed of trust, but relied upon the warranties in her deed, and that relying thereupon she purchased the land and made the payments as aforesaid, went into the possession of said land, and made improvements thereon of the value of $300; that at the foreclosure sale the plaintiffs purchased the land for said Frank W. Dudley and had full knowledge of the facts concerning her transactions with him, and that he was insolvent. The prayer of the petition is that Frank W. Dudley be made a party to the suit; that he be required to deliver up defendant's notes to him secured by the deed of trust and that they be canceled; that before the plaintiffs be permitted to recover possession of the land they be required to pay defendant the $700 and the value of her improvements; and that said sums be decreed to be a lien on said land.

The plaintiffs filed a reply alleging that they were the true owners of the land and that they paid a valuable consideration therefor. They also allege that they held the notes given by defendant to Frank W. Dudley. Frank W. Dudley was made a party defendant, or voluntarily appeared, and filed a reply to defendant's answer admitting the sale of the land to the defendant and the execution of her notes and deed of trust, and alleging that the notes were transferred to the plaintiffs for a valuable consideration, and that when defendant bought the land she knew that the prior deed of trust was thereon, and understood that it would be paid when due. He specifically denies that the warranty in his deed to the defendant "has at any time herein been broken" and concludes with a general denial of each and every other allegation.

Upon the issues thus formed the trial was had March 6, 1914, and on the 12th day of that month the court made a finding of facts, and entered a judgment providing that the plaintiffs should be charged with the payments made by defendant together with interest, making a total of $838, and with $214.20, the value of her improvements; also that defendant should be charged with $660, the rental value of the premises during the time she had occupied the land, thus making a difference in her favor of $392.20. It was then adjudged that the plaintiffs recover possession of the land upon the payment of said balance due the defendant, and that amount was adjudged to be a lien upon the land until paid, and also provided for a special execution in the event it was not paid within 60 days from the date of said judgment. It was also further adjudged that the defendant's notes be delivered, and produced in court, and canceled.

On the next day after this judgment was entered the court modified it by providing that upon the plaintiffs filing their appeal bond in this case, that they be entitled to the possession of the land and a writ of restitution therefor. The appeal bond was given and plaintiffs thereupon went into possession, a practice calculated to cause complications, should it be necessary to reverse the judgment and remand the cause.

The plaintiffs have appealed and Susie Waldrop is the only person appearing here as respondent.

The appellants insist here that the judgment cannot be sustained under the law and the evidence. This contention is based upon the proposition that since the defendant was not evicted from or disturbed in her possession of the land by the holder of the prior deed of trust, that there was at most only a technical breach of the warranty deed executed to her by said Frank W. Dudley, and that there was, therefore, only such a breach as would entitle her to nominal damages.

Before proceeding to discuss the legal questions involved, we shall refer generally to the facts disclosed in the trial of the case. There appears to be little controversy about the facts, but as it is an equity case, so made by defendant's answer, we have considered the evidence and concluded that the finding of facts by the trial judge are correct, and without reviewing the testimony in detail it is sufficient to state that we find that it discloses that the facts and circumstances surrounding the transfer of defendant's notes to the plaintiffs by Frank W. Dudley did not constitute them bona fide purchasers for value without notice, but that all of their acts in connection herewith are for him, and that in this case they represent and stand for Frank W. Dudley. It appears that one of the plaintiffs claims to have bid $1,500 at the foreclosure sale, but no part of it was paid except by adjusting some alleged prior transactions between them and Frank W. Dudley, and no credits were indorsed on the notes. The question of defendant's knowledge of the prior deed of trust at the time she bought the land was not a very vigorously contested issue. The defendant testified that she would not have bought this land if she had known at the time there was a deed of trust on it, and that as soon as she learned this fact she refused to pay any more of the purchase price. Defendant's husband represented her in the purchase of the property, but prior to the date of the trial he died. The only witness who testified in behalf of the plaintiffs upon this question of notice to the defendant testified that he talked with defendant's husband two or three months after the purchase of the land, and that defendant's husband then knew there was a prior deed of trust on the land, but the witness says he did not know whether the defendant's husband knew this before the purchase. The plaintiffs do not undertake to deny that the defendant had no actual notice of this prior deed of trust, and do not deny that she refused to pay the purchase price because of and as soon as she learned of this deed of trust, so that we must hold that there is proof of the fact that she had no actual notice of the prior deed of trust when she bought the land. Frank W. Dudley testified upon this question, but his testimony concerning what defendant's deceased husband knew concerning the prior deed of trust was, upon motion of the defendant, stricken out, and the plaintiffs saved no exception thereto.

The prior deed of trust was dated February 1, 1910, and conveyed a tract of 126 acres. The note secured by that deed of trust was not due at the date of the trial of the case at bar and the record does not disclose when it matured. On the same date that Frank W. Dudley conveyed the 40 acres to the defendant he also conveyed to one Brooklyn Davis 40 acres of this tract, and as a part of the consideration therefor Davis assumed the payment of the note which the prior deed of trust was given to secure.

It is alleged in defendant's answer that Frank W. Dudley was insolvent. The testimony as to his solvency is as follows:

"Q. You have no property in this county or state in your name now? A. I have none in my name or anybody else's name, except what little stock I have on hand now. Q. You don't run a bank account any more in your name? A. ...