Ewalt v. Lillard

• Decision Date: 03 February 1914
• Citation: 163 S.W. 536,180 Mo. App. 678
• Parties: EWALT v. LILLARD.
• Court: Missouri Court of Appeals

163 S.W. 536

180 Mo. App. 678

EWALT v. LILLARD.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. LIS PENDENS (§ 25) — EFFECT — TAKING MORTGAGE.

One taking mortgage on land after suit to divest the title to the land is instituted, and lis pendens is filed, does so subject to the final judgment in the suit.

2. LIS PENDENS (§ 25)—INCUMBRANCE PENDING SUIT—CONCLUSIVENESS OF JUDGMENT— FAILURE TO PASS ON INTERPLEA.

The judgment, though by default, for plaintiff, in a suit to divest title to land, pending which, and after filing of lis pendens, one took a mortgage from the defendant, is conclusive on the mortgagee, in the absence of fraud or collusion between the parties, which the mortgage must establish in that suit to defeat it, or in some other suit to vacate or set the judgment aside for that reason, and this though he filed an interplea, charging fraud, on which there was no trial; he not having insisted on a trial, as he should, or, if he did, and it was refused, not having appealed.

Appeal from Circuit Court, Lewis County; C. D. Stewart, Judge.

Suit by C. Mortimer Ewalt against John H. Lillard. Judgment for defendant, and plaintiff appeals. Affirmed.

C. M. Ewalt and A. F. Haney, both of Canton, for appellant. J. M. Jefferies, of Moberly, and John Whiteside, of Kahoka, for respondent.

NORTONI, J.

This is a suit by the beneficiary in a second deed of trust on real estate against the trustee in the first, or prior, deed of trust. Defendant trustee sold the property under the first deed of trust, and realized sufficient on the sale to pay the debt secured therein, together with the expenses of the sale and a considerable amount over and above both. This suit by the beneficiary in the second deed of trust proceeds against the trustee to compensate the debt secured in the second deed of trust out of the surplus remaining in the hands of the trustee after paying the debt for which the property was sold and the expenses incident to that sale. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Error is assigned with respect to the giving and refusal of instructions; but, in the view we take of the case, the questions thus presented are wholly immaterial, for it is obvious plaintiff is not entitled to recover in the circumstances appearing in the record.

The evidence reveals that Michael Reischling desired to purchase lot 1 in block 2, Hawkins & Davis addition to the town of Canton, in Lewis county, and, in order to do so, it was essential for him to execute a deed of trust thereon for $300. The purchase price of the lot was $650. Reischling's wife was insane at the time, and of course she was therefore incompetent to join him in the execution of the deed of trust. Because of this fact, he caused the title to the lot to be conveyed to his daughter, Cassie Reischling. Reischling paid $300 of the purchase price, and his daughter, Cassie, to whom the title was conveyed, executed a deed of trust to defendant, John H. Lillard, trustee, to the use of Laycock, to secure a note of $350 therein described. Such deed of trust was executed contemporaneously with the purchase of the lot on June 12, 1906, and forthwith duly recorded. A few months thereafter Cassie Reischling, the daughter to whom the title to the lot had been conveyed, and who had executed the deed of trust thereon at the behest of her father, asserted title in herself thereto, and denied the right of her father, Michael Reischling. Because of this fact, Michael Reischling, on May 8, 1907, instituted a suit in the circuit court of Lewis county against his daughter, Cassie, to divest the title of the lot in question from her, and invest it in himself, on the theory that he was the true owner thereof, and that his daughter merely held the title for him. It appears this suit was filed on May 8, 1907, and on the same day a notice of lis pendens concerning the filing of the suit and the controversy about the title was duly filed and recorded in the office of the recorder of deeds of Lewis county. Service in that case was duly had on the same day, May 8, 1907, on defendant therein, Cassie Reischling. Two days thereafter, that is, after the filing of the suit, the service therein, and the filing and recording of the lis pendens concerning it, Cassie Reischling employed plaintiff, an attorney at law, to represent her in that suit. Having so employed plaintiff, Cassie Reischling executed a second deed of trust on the lot in question of date May 10, 1907, in the amount of $175, to his use and benefit, in that it secured a note for that amount of even date therewith given for attorney's fees. This second deed of trust in favor of plaintiff recited that it was subject to the first, or prior, one, executed to defendant trustee to the use of Laycock June 12, 1906. The suit of Michael Reischling against his daughter, Cassie, filed on May 8, 1907, and in conjunction with which the lis pendens was likewise filed the same day, was returnable to the September term of the circuit court. Before the court convened, Cassie Reischling determined not to combat the claim of her father to the lot, and so informed plaintif...