Ewalt v. Lillard
| Decision Date | 03 February 1914 |
| Citation | 163 S.W. 536,180 Mo.App. 678 |
| Parties | C. MORTIMER EWALT, Appellant, v. JOHN H. LILLARD, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lewis Circuit Court.--Hon. C. D. Stewart, Judge.
AFFIRMED.
Judgment affirmed.
A. F Haney for appellant.
John A Whitesides and Jerry M. Jeffries for respondent.
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 one in block two, 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 plaintiff, her attorney. She offered to pay him ten dollars for his services in the matter and requested that he surrender to her the note and mortgage of $ 175, but this request was declined. No answer was filed in the case by Cassie Reischling or anyone for her, but plaintiff filed therein a paper denominated by him as an interplea, in which he set forth the facts and charged collusion between Cassie Reischling and her father to defeat his second deed of trust.
The record of that case, introduced in evidence in this one reveals that defendant therein, Cassie Reischling, though duly served, made no answer but defaulted, and the court so found and declared the fact, and found the issue for plaintiff, Michael Reischling, and by its decree divested the title of the lot from Cassie Reischling and invested it in her father, Michael Reischling. This judgment was entered September 16, 1907. But it appears no disposition whatever was made in that case of the so-styled interplea of this plaintiff therein. More than a year afterwards, on December 8, 1907, the lot was sold by defendant in the instant case, the...
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