Gordon and Vail v. Raymond

• Decision Date: 05 March 1945
• Docket Number: No. 20488.,20488.
• Parties: W.C. GORDON AND MERLE M. VAIL, ALL THE HEIRS AT LAW OF AUBREY G. GORDON, DECEASED, AND W.C. GORDON, ADMINISTRATOR OF THE ESTATE OF A.G. GORDON, DECEASED, v. WALTER A. RAYMOND, AS SUCCESSOR TRUSTEE FOR ESTELLE LEE KERNS AND ESTELL LEE KERNS
• Court: Missouri Court of Appeals

186 S.W.2d 849

W.C. GORDON AND MERLE M. VAIL, ALL THE HEIRS AT LAW OF AUBREY G. GORDON, DECEASED, AND W.C. GORDON, ADMINISTRATOR OF THE ESTATE OF A.G. GORDON, DECEASED, v. WALTER A. RAYMOND, AS SUCCESSOR TRUSTEE FOR ESTELLE LEE KERNS AND ESTELL LEE KERNS

No. 20488.

Kansas City Court of Appeals. Missouri.

March 5, 1945.

Appeal from Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.

REVERSED.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for appellants.

(1) The court erred in entering a decree for plaintiffs. The recording of the deed of trust was admitted and there was no competent evidence of a substantial nature tending to overcome the presumption of delivery from such recordation. Lynn v. Coates, Mo. 142 S.W. (2d) 1014; Burkey v. Burkey (Mo.), 175 S.W. 623, l.c. 624; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, l.c. 92; McReynolds v. Grubb, 150 Mo. 352, 51 S.W. 822, 823; Jones v. Jefferson, 334 Mo. 606, 66 S.W. (2d) 555, l.c. 558 and 559; Galloway v. Galloway, Mo. 169 S.W. (2d) 883 l.c. 888; Kansas City Granite & Monument Co. v. Jordan, 316 Mo. 1118, 295 S.W. 763, 771; Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W. (2d) 647, 653; McCune v. Daniels, Mo. App. 251 S.W. 458 l.c. 462. (2) The note imports a consideration. The burden was on plaintiff to prove want of consideration. Glascock v. Glascock, 217 Mo. 362, 117 S.W. 67 l.c. 72; Thompson v. McCune, 333 Mo. 758, 63 S.W. (2d) 41 l.c. 43; Hess v. Hessel, 102 S.W. (2d) 729 l.c. 730; Duvall v. Duncan, 341 Mo. 1129, 111 S.W. (2d) 89, l.c. 92. (3) The court erred in permitting plaintiffs' witness, C.A. Tate, to testify to a claimed habit of deceased to keep his property mortgaged in someone else's name. Such evidence involved other independent transactions with persons other than defendant, Estelle Lee Kerns, and was incompetent and without probative force. Funsch v. Stevenson, 223 S.W. 593 l.c. 596; Pyrtle v. International Shoe Company (Mo. App.), 291 S.W. 172, l.c. 172 and 173; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810, 817; Hayes v. Equitable Life Assur. Soc., 235 Mo. App. 1261, 150 S.W. (2d) 1113, 1119; Lorie v. Lumbermen's Mut. Casualty Co., 8 S.W. (2d) 81 l.c. 88. (4) The court erred in refusing to permit the defendant, Estelle Lee Kerns, to testify that the purported signature of such defendant on the records of the recorder of deeds' office withdrawing the deed of trust was not in her handwriting but was in the handwriting of the deceased, A.C. Gordon. Said defendant was a competent witness on that issue. Conley v. Johnson, 204 Mo. App. 185, 222 S.W. 891 l.c. 892. (5) The court erred in refusing to permit the defendant, Mrs. Kerns, to testify as to the physical fact of delivery of the note and deed of trust by the deceased to said defendant, as the death of the deceased did not disqualify her from giving such testimony. First National Bank of St. Charles v. Payne, 111 Mo. 291, 20 S.W. 40 l.c. 41; Jenkins v. Emmons, 117 Mo. App. 1, 94 S.W. 812 l.c. 814; Hamra v. Orten, 208 Mo. App. 36, 233 S.W. 495 l.c. 497.

Ben Clardy, for respondents.

(1) The recording of a deed of trust does not give rise to the presumption of the delivery of the note secured thereby. There was ample evidence for the court's decree in favor of plaintiff. McCune v. Daniels (Mo. App.), 251 S.W. 462; Ayers v. Milrey, 53 Mo. 521; Section 3032, Revised Statutes of Missouri, 1939; 22 C.J. 106, Sec. 46; Mills Corporation v. Stinebaker, 67 S.W. (2d) 821. (2) A note undelivered does not import a consideration and creates no legal liability and defendants failed to show a delivery. Ayers v. Milrey, 53 Mo. 521; 8 C.J. 203, Sec. 333; 22 C.J. 106, Sec. 46; S.S. Allen Grocery Co. v. Buchanan County Bank, 182 S.W. 777; Section 3032, Revised Statutes of Missouri, 1939; Duncan v. Gage (Mo. App.), 250 S.W. 647 l.c. 648. (3) There was no prejudicial error in admitting the testimony of C.A. Tate as to the custom of deceased in handling his property and his testimony was of strong probative force. Texas Company v. First Bank & Trust Co., 106 S.W. (2d) 28; 41 C.J. 425; Dickson v. Maddox, 48 S.W. (2d) 373, 330 Mo. 51; Blackiston v. Russell, 44 S.W. (2d) 22, 328 Mo. 1164; Burkey v. Burkey, 175 S.W. 623; Russell v. Frank, 164 S.W. (2d) 63. (4) There was no error in refusing to permit the defendant, Estelle Lee Kerns, one of the original parties to the transaction to testify as she was not a competent witness, death having sealed Gordon's lips, the law sealed hers. Patton v. Fox, 69 S.W. 289, 169 Mo. 97; Cloves v. Cloves, 239 S.W. 145. (5) It was not error for the court to refuse to permit the defendant, Estelle Lee Kerns, to testify as to delivery of note and deed of trust. Cloves v. Cloves, 239 S.W. 145; Elsea v. Smith, 273 Mo. 408, 202 S.W. 1071; Spencer v. Smith, 128 S.W. (2d) 315.

CAVE, J.

This is an appeal from a judgment of the circuit court of Jackson County canceling a certain note and deed of trust in the principal sum of $3,500, and enjoining the defendants from enforcement of the same.

The petition alleged that the plaintiffs, W.C. Gordon and Merle M. Vail, were the only heirs at law of Aubrey G. Gordon; that plaintiff, W.C. Gordon, was the administrator of the estate of said Aubrey G. Gordon; that the deceased, on March 16, 1936, executed a deed of trust and recorded the same, conveying to Clarence Skinner, as trustee for Estelle Lee Kerns, lots 92 and 93 Eastwood Hills, in trust to secure his promissory note in the sum of $3,500 with interest at 6%. The petition further alleged that said note was not given for a bona fide debt; was never delivered to defendant, Estelle Lee Kerns; that deceased was not indebted to her and said note was without consideration; that said defendant was not and never had been the legal holder of said note; that the designated trustee, Clarence Skinner, had died; that the sheriff, as substitute trustee, has advertised the property for sale under said deed of trust, but had not gone through with the sale; that the defendant, Walter A. Raymond, as successor trustee, had advertised said property for sale and would sell it unless restrained; that said sale would cause irreparable damage and that plaintiff had no adequate remedy at law. The petition prayed that defendants be enjoined from selling or attempting to sell said property under said deed of trust; and that the note and deed of trust be canceled and set aside and released of record. (Italics ours.)

The answer of defendant, Raymond, consisted of a general denial, and admission of his appointment as successor trustee, and admission of the publication of the notice of sale.

The answer of defendant, Mrs. Kerns, consisted of a general denial, and admission of the death of Aubrey C. Gordon, the appointment and qualification of the plaintiff, W.C. Gordon, as administrator; and admits the execution and recording of the deed of trust by the deceased, but denies the allegations of nondelivery and want of consideration; admits the death of Clarence Skinner, the trustee, the action of the sheriff as substitute trustee in advertising, but failing to sell said property; admits allegations setting forth the appointment of defendant, Walter A. Raymond, as substitute trustee, and the advertising of the property for sale, and prays that the petition be dismissed.

Trial was had before the court, resulting in a judgment for plaintiffs and against defendants, enjoining the defendants from foreclosing said deed and decreeing that the note and deed of trust be canceled and set aside for naught held, because "the note and deed of trust ... were never delivered, were without consideration and that the defendant, Estelle Lee Kerns, was not the legal holder of said note." From this judgment the defendants appeal.

Specific errors are assigned to the findings of the court, and error in admitting and excluding certain evidence.

It is undisputed that, on March 16, 1936, Aubrey C. Gordon signed a promissory not for $3,500, with interest from date at the rate of 6% per annum, payable semiannually, to Estelle Lee Kerns or order; that on the same day he executed a deed of trust to secure the payment of the debt evidenced by the note; and by said deed of trust conveyed certain real estate therein described to one Clarence Skinner, as trustee; and that he, Aubrey C. Gordon, recorded the deed of trust in the office of the Recorder of Deeds the following day. It is also undisputed that the administrator of deceased found the note and deed of trust in a strong box in a trunk belonging to deceased and located in his apartment; and that the substitute trustee would have foreclosed the deed of trust if he had not been enjoined.

The oral testimony, offered by plaintiffs, may be summarized as follows: William C. Gordon, administrator and brother of deceased, testified that he was a captain of police in Kansas City; that he and his sister, Merle M. Vail, of Chicago, were the only remaining heirs at law of the deceased; that he found the note and deed of trust in the bottom of a trunk in an iron box with deceased's other papers; that he was not very familiar with deceased's affairs that he knew nothing about the execution of the note and deed of trust and did not know of his brother borrowing money from anybody; that deceased had been unemployed for several months prior to his death, and that the only cash he, as administrator, had found belonging to his brother was about $20 in his pocket; that a Miss Hawkinson, (a witness for defendants), was a friend of the deceased, and was with him at the time of his death.

C.A. Tate testified that up until the last eighteen months of the life of Aubrey G. Gordon they were close friends and together almost constantly; but about that time they had a quarrel and had not been reconciled since. Over the objections of defendants, this witness was permitted to testify that at one time or another all of deceased's properties were in the name of the witness by mortgage, although the...