Gibbs v. Haughowout

• Decision Date: 27 November 1907
• Citation: 105 S.W. 1067,207 Mo. 384
• Parties: WILLIAM GIBBS et al. v. MAUD HAUGHOWOUT et al., Appellants
• Court: Missouri Supreme Court

105 S.W. 1067

207 Mo. 384

WILLIAM GIBBS et al. v. MAUD HAUGHOWOUT et al., Appellants

Supreme Court of Missouri, First Division

November 27, 1907

Appeal from Christian Circuit Court. -- Hon. Asbury Burkhead, Judge.

Affirmed.

R. A Mooneyham and G. Purd Hays for appellants.

(1) The presumption of law, independent of proof, is that an instrument purporting on its face to be a sale, is what it purports to be, and to overcome this it has been said by many authorities of undoubted repute that the evidence that a mortgage was in fact intended must be clear, satisfactory and convincing, cogent, precise and indubitable, explicit and unequivocal or at least conclusive. 20 Am. and Eng. Ency. Law (2 Ed.), 954; Jones v. Rush, 156 Mo. 364; Mulock v. Mulock, 156 Mo. 431; Viers v. Viers, 175 Mo 453; McKee v. Higbee, 180 Mo. 299; Forester v Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423; Smith v. Smith, 100 Mo. 592; Atkinson v. Henry, 80 Mo. 157; Modrell v. Riddle, 82 Mo. 36; Rogers v. Rogers, 87 Mo. 259; Jackson v. Wood, 88 Mo. 78; Philpot v. Penn, 91 Mo. 45; Berry v. Hartzell, 91 Mo. 136; Keiser v. Gamman, 95 Mo. 224; Allen v. Logan, 96 Mo. 601; Burdett v. May, 100 Mo. 16; Taylor v. Von Schraeder, 107 Mo. 225; Reed v. Painter, 129 Mo. 682; Curd v. Brown, 148 Mo. 92; Pitts v. Weakley, 155 Mo. 136. Plaintiff had been convicted of larceny, as shown by the evidence introduced by himself; he was shown to have made statements inconsistent with his claim that the deed in controversy was executed as security; and his claim that Mr. Haughowout agreed to accept $ 25 as full payment for all services rendered, is improbable. These facts tend strongly to discredit his testimony. Besides, the transaction is not marked by any of the indicia accompanying and following the execution of an absolute conveyance as a mortgage. 20 Am. and Eng. Ency. Law (2 Ed.), 944. (2) Gibbs was incompetent to testify to transactions with T. B. Haughowout, Mr. Haughowout being dead.

J. C. West for respondents.

OPINION

WOODSON, J.

The plaintiffs instituted this suit against the defendants in the circuit court of Christian county, having for its purpose the cancellation of a certain warranty deed, alleged to have been intended by the parties thereto as a mortgage, dated October 24, 1901, duly executed by plaintiffs to T. B. Haughowout, now deceased, conveying to him and his heirs the north half of the southwest quarter of section thirty-four, township twenty-six, north of range twenty-one, west of the fifth principal meridian, containing eighty acres; all in Christian county, Missouri.

There was a trial had before the court, and the findings and decree were in favor of plaintiffs. After an unsuccessful motion for a new trial had been disposed of, defendants appealed the cause to this court.

The evidence on the part of the plaintiffs tended to prove substantially the following facts: That on or just prior to the date of the deed, William Gibbs, one of the plaintiffs, had been charged with grand larceny, in Jasper county, and had been arrested and placed in jail; that T. B. Haughowout was at that time a practicing lawyer at the Jasper County Bar; that said Gibbs employed said Haughowout to defend him against said charge, and agreed to pay him twenty-five dollars for his services, which was to be paid in thirty days, and evidenced by a promissory note and secured by a chattel mortgage on some horses and a wagon; that he was confined in jail and had no money with which to pay said fees, and at the time the contract of employment was entered into it was agreed between them that Haughowout was to furnish him bail in the sum of three hundred dollars, in order that he might get out of jail and go to work and earn the money with which to pay the attorney fees; and that in order to indemnify Haughowout against loss for signing said bail, said Gibbs agreed to and did execute the warranty deed mentioned, conveying to him the land described; that Haughowout accepted said deed under said agreement and had it recorded, and furnished the three hundred dollar bond for said Gibbs, and he was released from jail, and in due time he paid off the twenty-five dollar note, which was by Haughowout marked paid, and he surrendered the note and mortgage to Gibbs; that Gibbs appeared in court according to the conditions of the bond, from time to time, until finally the case against him was dismissed, and that by said dismissal he and his bondsmen were discharged from all liability upon the three hundred dollar bond, and that when Haughowout and the other securities were all released from all liability on the bond by the dismissal of the cause, it became the duty of said Haughowout under the agreement with Gibbs to reconvey the land back to the plaintiff Gibbs. Plaintiffs also introduced evidence showing that T. B. Haughowout was dead at the time of the institution of this suit, and that the defendants are his administrator and heirs at law, and that he demanded of them a reconveyance of the land in question and that they refused to reconvey it to him.

The defendants introduced evidence tending to prove that T. B. Haughowout was a lawyer, duly licensed to practice law in this State, and that he was an able and successful practitioner; that he represented Gibbs before the justice of the peace at his preliminary hearing, and that he was bound over to the circuit court in the sum of three hundred dollars to await the action of the grand jury; that he and his brother, W. F. Haughowout, signed his bond; that Gibbs was subsequently tried and found guilty; that said Haughowout defended him in that trial, and filed a motion for a new trial, which was by him argued, and it was by the court taken under advisement; and that subsequently, when the court indicated that the motion would be sustained, the prosecuting attorney dismissed the case. The evidence also showed that the services rendered by Haughowout were worth from $ 250 to $ 400.

The evidence shows Haughowout had prepared the warranty deed in the morning of the day on which it was executed; that it was read over to Gibbs and his wife and they signed and acknowledged it, but said nothing at the time why they were making the deed.

The acknowledgment was taken by Maude Haughowout, a notary public, and wife of T. B. Haughowout.

I. All the evidence shows, and there is no pretense but what the warranty deed executed by Gibbs and wife was intended by all the parties to it to be a mortgage to indemnify T. B Haughowout and his co-securities against loss for having signed Gibbs's bond for the sum of three hundred dollars, conditioned that he would appear from time to time before the circuit court of Jasper county to answer the charge of grand larceny, then pending against him. It is equally well established that Gibbs did appear before said...