Empire Trust Co. v. Hitchcock

• Citation: 123 S.W.2d 565,233 Mo.App. 581
• Parties: EMPIRE TRUST COMPANY, DEFENDANT IN ERROR, v. MILAN E. HITCHCOCK ET AL., PLAINTIFFS IN ERROR
• Decision Date: 09 January 1939
• Court: Court of Appeals of Kansas

123 S.W.2d 565

233 Mo.App. 581

EMPIRE TRUST COMPANY, DEFENDANT IN ERROR, v. MILAN E. HITCHCOCK ET AL., PLAINTIFFS IN ERROR

Court of Appeals of Missouri, Kansas City

January 9, 1939

Writ of Error to Andrew Circuit Court.--Hon. R. B. Bridgeman Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Earl C Borchers and John P. Randolph for plaintiffs in error.

(1) It was error to refuse to permit the defendants to testify that the deed he received and recorded was not the deed he was supposed to get, and that he did not agree to assume and pay all or any part of the Avitt note. Central Missouri Trust Co. v. Taylor, 289 S.W. 658; Duvall-Percival Trust Co. v. Corzine, 295 S.W. 851; La Monte Bank v Crawford, 27 S.W.2d 762; Johnson v. Maier, 187 S.W. 143, 194 Mo.App. 169. (2) It was error for the Court to refuse to allow defendants to show by the witness Avitt that he gave a deed in blank for the purpose of discharging or paying the note upon which plaintiff was claiming a deficiency was chargeable to the defendants: (a) If such a trade was made the note had been discharged in toto. (b) The subsequent insertion of the names of the defendants in the Avitt deed did not make them a party to any agreement to assume and agree to pay any balance on the Avitt note. (c) The Court erred in refusing to allow defendants to show by said witness Avitt that the assumption clause was not in the deed later delivered to defendants Hitchcock at the time said deed was executed by said Avitt and his wife. (3) It was error for the Court to consider this case an action on the promissory note executed by the Avitts, and it was error to overrule defendants' objection to the statement by the witness Sparks:--"this is a suit on a promissory note--." Phoenix Trust Co. v. Garner, 59 S.W.2d 779, 227 Mo.App. 929. (4) It was error for the Court to refuse to admit in evidence the twenty-six (26) receipts offered by defendants. (5) Under plaintiffs' evidence, and theory of the case, plaintiff knew nothing about the alleged assumption clause in the deed in question and therefore could not have been a party to such an agreement, and was neither misled thereby nor entitled to recover thereunder. Johnson et al. v. Maier et al., 187 S.W. 143. (6) Plaintiff failed to show any consideration for alleged assumption agreement, and trial Court upon objection of plaintiff refused to allow defendants to show that there was no consideration in fact for such an agreement. Johnson et al. v. Maier et al., 187 S.W. 143; Ward v. Hartley, 77 S.W. 302, 178 Mo. 135. (7) Recording of deed is evidence of delivery and acceptance only so far as it relates to passing of title, and is insufficient alone from which to find that grantees assented to obligation to pay mortgage debt which instrument sought to impose on them, and it was error for the Court to rule out defendants' testimony and evidence on the theory that recording of the deed and taking possession of the land precluded defendants from denying acceptance of assumption clause in deed. Duvall-Percival Trust Co. v. Cozine, 295 S.W. 851; Central Missouri Trust Co. v. Taylor, 289 S.W. 658. (8) The Court erred in instructing verdict for plaintiff. (a) It is not within the province of the trial Court to pass upon the weight or credibility of the evidence in determining whether to give instructed verdict for plaintiff where plaintiffs' evidence is disputed or denied by pleadings or testimony of defendants. (b) In giving instructed verdict trial Court must look to the law of the case alone and not invade the province of the jury as the triers of the facts. (c) The jury may disregard any evidence, though same is not directly contradicted, especially where effect of such evidence is expressly denied by adverse party. Lovell v. Davis, 52 Mo.App. 342; Schumacher v. Kansas City Breweries Co., 152 S.W. 13, 247 Mo. 141; Anderson v. Kansas City Rep. Co., 233 S.W. 203, 290 Mo. 1; Kneuven v. Berliner's Estate, 54 S.W.2d 494. (d) Evidence is not conclusive where the facts established by it are not admitted, and the jury may disregard it. Fish v. Chicago, R. I. & P. Ry. Co., 172 S.W. 340, 262 Mo. 106. (e) Burden of proof is on plaintiff to make out case as stated in petition; whether that has been done is question for the jury. Chuck v. Abe, 40 S.W.2d 558, 328 Mo. 81; Connole v. East St. Louis & S. Ry. Co., 102 S.W.2d 581, l. c. 586. (f) Where allegations of petition are denied defendant is entitled to have jury pass on credibility of plaintiffs' evidence though defendant himself offers no evidence. Cluck v. Abe, 40 S.W.2d 558; Schroeder v. C. & A. Ry. Co., 18 S.W. 1094, 1095, 108 Mo. 322, 18 L.R.A. 827. (g) To recover, plaintiff must prove case by preponderance of evidence. This is a question for the jury, and not for the Court. Stiers v. Edwards, 42 S.W.2d 362; Carner v. St. Louis-San Francisco Ry. Co., 89 S.W.2d 947, 338 Mo. 257; Hasenjager v. Mo.-Kansas-Texas R. Co., 53 S.W.2d 1083, 227 Mo.App. 413. (9) Evidence importing alleged undertaking by grantee to assume and pay encumbrance should be clear and convincing. McFarland v. Melson, 20 S.W.2d 63. (10) The H. S. Smith Investment Company while holder of the Avitt deed in blank was the owner of the deed and the equitable owner of the property and therefore, could not insert a valid assumption clause in the deed for the reason that it could not make a valid contract with itself. Robertson v. Vandalia Trust Co., 66 S.W.2d 193, 228 Mo.App. 1172.

J. V. Gaddy and Ronald S. Reed for defendant in error.

(1) It was not error to refuse to permit the defendants to testify that the deed they received was not the deed they were supposed to get, and that they did not agree to pay all or any part of the Avitt note, (a) the affirmative defenses set up by defendants in their answer and cross petition, had all been adjudicated adversely to them in a former suit, (b) because no such pleadings were tendered by them raising such an issue for the court to determine. Donnell v. Wright, 147 Mo. 639; Hamilton v. McClain, 169 Mo. 51; Berry v. Majestic Milling Co., 263 S.W. 929; Hartwig v. Ins. Co., 167 Mo.App. 128; LaRue v. Kempf, 186 Mo.App. 57; Nelson v. Nelson, 221 S.W. 1066; Emmett v. Aldrich, 231 Mo. 124; Bush v. Block & Titus, 193 Mo.App. 704. Where there is nothing on the face of the petition to indicate other than a valid contract, if it is to be invalidated by an intrinsic matter, such matter should be pleaded. Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, 204 S.W. 399; McDearmont v. Sedwick, 140 Mo. 182; School Dist. v. Scheidley, 138 Mo. 690; Bell v. Warehouse Co., 205 Mo. 493; Shoney v. Railroad, 231 Mo. 147. (2) It was not error for the court to refuse to allow defendants to show by the witness Avitt that the deed he gave in blank for the purpose of paying or discharging the note upon which the plaintiff was claiming a deficiency, was chargeable to the defendants. It would not have been error to refuse such evidence. (3) It is apparent from the record that the court did not consider this case as a suit on a promissory note. (4) It was not error for the court to refuse the twenty-six receipts offered by the defendants. (5) Unless there is an issue of fact made by the pleadings which questions the legality of the assumption clause, the mere acceptance of the deed with the clause assuming and agreeing to pay the note, is sufficient to bind the grantee. Priddy v. Bank, 132 Mo.App. 279; Pratt v. Conway, 148 Mo. 291; Nelson v. Brown, 140 Mo. 580. (6) Recording of the deed is evidence of delivery and acceptance only so far as it relates to the title, and is insufficient alone from which to find that the grantees assented to the obligation to pay the mortgage debt. (7) It was the duty of the court to instruct a verdict for plaintiff because (a) the facts necessary to be shown by plaintiff was established by documentary proofs which the defendants were estopped from denying because of the adjudication in the former suit, and (b) that the defense offered by the defendants had been previously adjudicated, and (c) no issue of fact was raised by the pleadings (which had not already been determined) which could defeat the claim made by the plaintiff in the petition. Dunham-Buckley & Co. v. Halberg, 69 Mo.App. 509; Weese v. Brown, 102 Mo. 299; Hoster v. Lange, 80 Mo.App. 234; Crawford v. Stayton, 131 Mo.App. 263; St. Charles Savings Bank v. Orthwein Inv. Co., 160 Mo.App. 369; Janes v. Levee Dist. No. 2, 183 S.W. 697; Sturtevant Bank v. Hawk, 215 S.W. 758; Crouse v. Spurgeon, 256 S.W. 1072.

SPERRY, C. Campbell, C., concurs. Shain, P. J., and Bland, J., concur; Kemp, J., not sitting because not a member of the court at time cause was argued and submitted.

OPINION

SPERRY, C.

Empire Trust Company, a corporation, was the sole owner of a note, secured by mortgage on real estate. The mortgage was foreclosed and this suit was brought by it, as plaintiff, against Milan E. and Nina B. Hitchcock, defendants, for the deficiency between the net amount realized from the foreclosure sale of the real estate and the full amount of the note and interest. The trial court, at the conclusion of all of the evidence, directed a verdict for plaintiff. Judgment was duly rendered on said verdict and defendants appealed but later dismissed the appeal. They sued out a writ of error which brings the case before us. The parties will be referred to herein as follows: Empire Trust Company as plaintiff, and Milan E. and Nina B. Hitchcock as defendants.

Plaintiff instituted the suit by filing a petition alleging the following: Ownership of a certain promissory note signed by A. Jennie and Clyde E. Avitt, in the principal sum of $ 4000 the credits on said note; the existence of record of a mortgage deed executed by the Avitts as...