Gammage v. Latham

• Decision Date: 04 June 1920
• Docket Number: No. 20224.,20224.
• Citation: 222 S.W. 469
• Parties: GAMMAGE v. LATHAM et al.
• Court: Missouri Supreme Court

222 S.W. 469

GAMMAGE v. LATHAM et al.

No. 20224.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Harriet B. K. Gammage (now Cousins) against W. T. Latham and another, as executors of D. C. Gammage, deceased, and R. J. Brown, trustee for the estate of D. C. Gammage, deceased. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

This action was commenced by plaintiff in the circuit court at Kansas City, Mo., on December 24, 1915. The petition alleges that on March 16, 1915, D. C. Gammage, a resident of Jackson county, Mo., departed this life testate, and by his last will, filed in the probate court of said county, at Kansas City, Mo., plaintiff and defendants, W. T. Latham and T. R. Gammage, were named as executors of skid win, and in accordance therewith were, by said probate court, duly appointed to act as such; that since said time they have been, and still are, the duly qualified and acting executors of the will aforesaid; that at all the dates herein mentioned plaintiff was, and still is, the holder in fee simple of lots 3 and 4 in block C, David Walk place, an addition in and to Kansas City, Jackson county, Mo.; that on November 23, 1914, at the special instance and request of said D. C. Gammage, deceased, she executed and delivered to the latter a pretended promissory note for $4,000, purporting to bear interest at 6 per cent. per annum, payable semiannually, and purporting to become due and payable on November 23, 1917; that in connection with and as part of said purported transaction, and contemporaneous with the execution of said note, she also executed and delivered to said D. C. Gammage, deceased, a pretended deed of trust, purporting to convey to said R. J. Brown the above-described real estate in trust, however, to secure to said D. C. Gammage, deceased, the payment of said pretended promissory note; that the pretended deed of trust aforesaid, on November 23, 1914, was duly filed for record in the recorder's office of Jackson county, Mo., at Kansas City, in Book B 1593, at page 224; that at the time of the execution of said pretended note and deed of trust plaintiff was not indebted to said D. C: Gammage, in any sum whatever, nor did she at any time prior to the making thereof, or at any other time, receive from said D. C. Gammage, or any one for him, the principal sum, or any part thereof, named in said note, etc.; that said pretended note and deed of trust were and are without consideration, and constitute a cloud upon the title of plaintiff to the real estate aforesaid, etc.

Plaintiff prayed for a decree canceling said note and deed of trust, and divesting said Brown of his record title to said real estate, and vesting the same in plaintiff, in fee simple. She also prayed for general relief.

Defendants, W. T. Latham and T. R. Gammage, for their joint answer to said petition, admit that since about the 16th of March, 1915, they have been, and still are, executors of the last will of said D. C. Gammage, deceased. They admit that said testator died about March 16, 1915. They admit that as such executors they hold and have in their possession the $4,000 note aforesaid, and admit that said note is secured by first lien on above-described real estate. They deny every other allegation of plaintiff's petition. They prayed to go hence without day and recover their costs.

On April 6, 1918, the case having proceeded to trial before Judge O. A. Lucas, the latter announced from the bench he thought the evidence clearly disclosed that said note and deed of trust were without consideration, but intimated to counsel for defendants that a cross-bill might be filed, asking that plaintiff be divested of the legal title to said real estate.

Defendants, W. T. Latham and Dr. T. R. Gammage, pursuant to leave of court, filed herein their joint answer and cross-bill. They pleaded therein the same facts contained in the original answer, and by way of cross-bill alleged that on November 23, 1914 and for more than a year prior thereto, said D. C. Gammage was the owner of a $4,000 note, executed by one M. M. Robinson to H. B. Knowles, secured by a deed of trust on the real estate in controversy; that the maker of said last-described note defaulted in the payment of same, etc. On or about November 1, 1914, said D. C. Gammage demanded of defendant W. T. Latham, the trustee in said deed of trust, that he foreclose same; that on November 21, 1914, said Latham advertised and sold said real estate under the deed of trust aforesaid.

Defendants, Latham and Gammage, allege that said D. C. Gammage was then 75 years of age, in poor health, and was physically unable to attend the foreclosure sale; that he authorized and empowered this plaintiff, who had been acting as his agent in the transaction of his business, to attend said sale and buy in said property for him; that plaintiff, in compliance with said instructions, bought in the property aforesaid for testator for the consideration of $4,135; that said real estate was sold to plaintiff by said Latham, as trustee, for the use and benefit of said D. C. Gammage, for the price of $4,135; that saiC. D. C. Gammage continued sick, and died about March 16, 1915; that said Latham, as trustee, executed to this plaintiff a deed for said property, and credited the Robinson note with the net proceeds of said sale; that plaintiff paid nothing to said trustee for the real estate aforesaid; that by reason of the premises plaintiff holds said real estate in trust for the use and benefit of said D. C. Gammage.

Said answer and cross-bill, after describing the note and deed of trust mentioned in petition, contains the following:

"That the plaintiff herein executed and delivered the aforesaid note for four thousand ($4,000) dollars, dated on or about November 23, 1914, and the said deed of trust, bearing the same date (given to secure the said note), as a matter of accommodation and convenience to the said D. C. Gammage, deceased." (Italics ours.)

The answer and cross-bill then alleges that the note and deed of trust described in petition should not be canceled, etc., until plaintiff executes and delivers to said defendants, Latham and T. R. Gammage, executors, a deed conveying to them the fee-simple title to said real estate.

The answer and cross-bill concludes with a prayer, declaring that plaintiff holds the legal title to said real estate in trust, for the use and benefit of the estate of said D. C. Gammage, and that when she has executed and delivered to said executors a deed for said real estate the note and deed of trust described in petition be canceled, etc. In case plaintiff failed to execute to said executors a deed to said property, then the court was asked to divest plaintiff of the title thereto, and vest the same in said Latham and Gammage, as executors aforesaid. They also asked for general relief. On July 23, 1919, additional evidence was heard, and the cross-bill treated as denied by plaintiff.

In order to avoid repetition, the evidence and rulings of the court during the progress of the trial win be considered, as far as necessary, in the opinion. The court found the issues for the executors, and entered a decree substantially as prayed for in the cross-bill. Plaintiff in due time filed her motion for a new trial, which was overruled, and the cause duly appealed by her to this court.

Walter W. Calvin and Alfred N. Gossett, both of Kansas City, for appellant.

Marley & Reed, of Kansas City, for respondents.

RAILEY, C. (after stating the facts as above).

1. It is alleged in petition that on November 23, 1914, plaintiff, at the special instance and request of D. C. Gammage, deceased, executed and delivered to the latter a promissory note for $4,000, and that the same was secured by a deed of trust on the real estate in controversy, the legal title to which was then in plaintiff. It is alleged in petition, and the evidence conclusively shows, that said note and deed of trust were without consideration, and given to said testator as a matter of convenience. In fact the cross-bill filed by defendants as executors practically concedes the foregoing to be true, as shown by the statement therein, to wit:

"That the plaintiff herein executed and delivered the aforesaid note for four thousand ($4,000) dollars, dated on or about November 23, 1914, and the said deed of trust bearing the same date (given to secure the said note), as a matter of accommodation and convenience to the said D. C. Gammage, deceased." (Italics ours.)

Regardless of the question as to Whether plaintiff is the absolute owner of the property in controversy, or holds the same in trust for said estate, she was, and is, entitled to have said note and deed of trust canceled.

2. Treating the defendant's cross-bill as an independent action, brought by defendants, as executors and trustees under the will of D. C. Gammage, deceased, to establish a resulting trust in their favor, as against plaintiff, and to divest her of the legal title to said real estate, and waiving the question as to whether said defendants can maintain this kind of an action, we will express our views of the law and facts as though their right to maintain the same were unquestioned.

It is undisputed that the legal title to the property in controversy was conveyed to plaintiff under the express direction of testator,...