Farmers' Exchange Bank v. Crump

• Decision Date: 30 January 1906
• Citation: 92 S.W. 724,116 Mo.App. 371
• Parties: FARMERS' EXCHANGE BANK, Respondent, v. CRUMP, Appellant
• Court: Missouri Court of Appeals

92 S.W. 724

116 Mo.App. 371

FARMERS' EXCHANGE BANK, Respondent, v. CRUMP, Appellant

Court of Appeals of Missouri, St. Louis

January 30, 1906

Appeal from Scotland Circuit Court.--Hon. E. R. McKee, Judge.

AFFIRMED.

STATEMENT James P. Nesbit owned certain lots, in the city of Memphis Scotland county, Missouri, incumbered by a school mortgage of four hundred dollars. Nesbit sold his lots to James E Latham, giving him a bond to make a deed on payment by Latham of the purchase price, to-wit, six promissory notes of twenty-five dollars each, Latham assuming the payment of the four hundred dollars school fund mortgage. Afterwards, and before Nesbit had made a deed, Latham and defendant Crump entered into the following contract:

"This contract and agreement made and entered into by and between James E. Latham of Memphis, Mo., party of the first part and Dan Crump of city and State aforesaid, party of the second part.

"Witnesseth That the party of the first part has this twenty-sixth day of June, 1898, exchanged, sold or bartered to the party of the second part his residence property consisting of one lot and dwelling in Memphis, Mo., the same being occupied by himself and family at present, formerly owned by James P. Nesbit on which there is $ 400 school money and $ 100 due James P Nesbit.

"In exchange for above said property, party of the second part sets over to the party of the first part a certain tract of land known as the Billy Moore land situated some three or three and one-half miles to the northwest of Memphis, Mo., and consisting of thirty-seven acres more or less and on which there is $ 450 school money--each party to this contract hereby agrees to assume the other's indebtedness as above set forth. Each to pay the interest on the respective indebtedness or loans on the property he gets in exchange, commencing on or about the first day of December last. Each to pay the taxes for the last year on the property he exchanges. And agree each to transfer to the other his property by good and sufficient warranty deed, party of the first part to have the city property free of rent for three months from this date at which time he hereby agrees to render peaceable possession unless an arrangement be made for further occupancy--party of second part renders possession of the farm on the first day of March, A. D. 1899.

"To this contract and agreement the parties hereto have hereunto subscribed their hands and seals this date first above written. "JAMES E. LATHAM (Seal)

"DAN CRUMP. (Seal)"

Crump conveyed his thirty-seven-acre farm to Latham, and Nesbit, at Latham's request, made a deed conveying the town lots to Crump, but did not deliver it to him but deposited it with the plaintiff bank to be held by it in escrow until Crump should pay the bank one hundred dollars in discharge of Nesbit's indebtedness to the bank, evidenced by the following note:

"$ 100. Memphis, Mo., Dec. 31, 1898.

"Thirty days after date I, the subscriber of Memphis, county of Scotland, State of Missouri, for value received, promise to pay to the order of the cashier of the Farmers' Exchange Bank of Memphis, one hundred dollars, at its banking house in Memphis, Scotland county, Missouri, with interest at the rate of eight per cent per annum after maturity, having deposited with him as collateral security six promissory notes signed by James E. Latham for twenty-five dollars each war. deed to property for which notes were given, and in case this note shall not be paid when due I hereby give said cashier authority as my agent to sell said collateral, or any part thereof, for cash on my account at the maturity of this note or at any time thereafter, at public or private sale, at his discretion, without advertising the same or giving notice, and to apply the proceeds of said collateral to the payment of this note and any interest due thereon, with costs and expenses of executing this trust. (I R. 2 Cent Stamp) "JAMES P. NESBIT."

It was agreed by and between Nesbit and the bank that on the payment of the one hundred dollars by Crump, the deed should be delivered to him and the notes should be delivered to Latham. On examination of the deed by the cashier of the bank, he suspicioned that the property was erroneously described and for the purpose of having the matter investigated placed the deed in the hands of the bank's attorney, who in turn delivered it to Myers for examination. Myers found the description correct and, after holding the deed in his possession for several months, being ignorant of the fact that it had been deposited with the bank, and believing that Crump was entitled to its possession, delivered it to him and Crump immediately filed it for record.

On December 1, 1897, there was sixty-seven dollars and ninety-eight cents back interest due on the school mortgage on the town property which Latham failed to pay and which Crump was compelled to pay. For the reason he was compelled to pay this bank interest and also some back taxes on the town property, he refused to pay the one hundred dollars to the bank or to Nesbit. The suit is to recover the one hundred dollars with interest, the petition alleging that the bank ratified the delivery of the Nesbit...