Graham v. Finnerty

• Decision Date: 06 June 1921
• Docket Number: No. 22038.,22038.
• Citation: 232 S.W. 129
• Parties: GRAHAM v. FINNERTY.
• Court: Missouri Supreme Court

232 S.W. 129

GRAHAM v. FINNERTY.

No. 22038.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Blanch Graham against Thomas Finnerty. Judgment for plaintiff, and defendant appeals. Affirmed.

T. J. Rowe and Henry Rowe, both of St. Louis; for appellant.

Frank H. Haskins, of St. Louis, for respondent.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis.

Suit in ejectment for a portion of a lot of ground in block 1987 in said city.

Answer was a general denial.

The substantial facts are: John Finnerty, on February 10, 1908, conveyed the property in question to Thomas Finnerty and Kate Finnerty, his wife, creating in them an estate by the entirety. Afterwards, said Thomas Finnerty and his wife, on April 1, 1908, executed a deed of trust on the property to Gustave Dammert, as trustee, to secure a note for $6,000, dated April 1, 1908, payable to the order of Lillie Willemsen three years after its date, together with six interest notes for $150 each, payable every six months after the date of said note until its maturity. The notes were signed by Thomas Finnerty alone, and were executed for purposes of his own; there being no consideration therefor. Upon the execution of the notes and deed of trust, the notes were indorsed in blank without recourse, by said Lillie Willemsen, and delivered to Thomas Finnerty. The deed of trust was duly acknowledged by Finnerty and wife and recorded October 2, 1908. He kept the notes and deed of trust in his possession until the notes matured in April, 1911. He then caused an extension to be written upon the principal note, extending the payment thereof for five years from April 1, 1911. He also executed ten new interest notes, each for $150, and payable to the order of said Lillie Willemsen every six months thereafter. These interest notes were also indorsed by her without recourse, and redelivered to said Thomas Finnerty, who retained them with the principal note and deed of trust until October 16, 1911. On that date, said Thomas Finnerty purchased a saloon and contents, including the leasehold, in the city of St. Louis, from J. N. Crebs for $6,000, giving his monthly notes of $125 each therefor to said Crebs. At the same time, to secure said monthly notes, he pledged with said Crebs, as collateral, the said $6,000 note and interest notes and the deed of trust on said property. After paying sixteen of such monthly notes, Finnerty defaulted upon payment of the balance. Crebs sold the unpaid monthly notes to John S. Blake & Bro. Realty Company for value, and transferred to them the $6,000 note and interest notes thereto belonging, executed by said Lillie Willemsen, and the deed of trust.

On November 28, 1913, the trustee in said deed of trust, Gustave Dammert, having refused to further act as such, Edward W. Foristel was by the circuit court in the city of St. Louis appointed as his successor, and proceeded to advertise the sale of the real estate described in the deed of trust to satisfy said $6,000 note and interest. Thereupon, on December 6, 1913, Kate Finnerty, the wife of said Thomas Finnerty, as plaintiff, brought suit against said Edward W. Foristel, as trustee, said John S. Blake & Bro. Realty Company, and her husband, Thomas Finnerty, as defendants, to enjoin such trustee's sale.

On the trial of the case, the circuit court found that said five-year extension of said note was made without the knowledge or consent of Kate Finnerty; that said deed of trust was also delivered to said Crebs without her knowledge or consent and without her authority; that said trustee's sale would cast a cloud upon her title to said real estate. Wherefore, the court adjudged said deed of trust null and void as against said Kate Finnerty, and that it could not be enforced against her, nor in any manner affect her right, title, and interest, in and to said property, and that defendants Foristel and Blake & Bro. Realty Company be forever enjoined from selling the right, title, and interest of said plaintiff, Kate Finnerty, in and to said real estate.

Defendants, against whom the decree was rendered, appealed to this court, which affirmed the judgment of the lower court. The case is reported in 276 Mo. at page 332, 207 S. W. 772.

The said deed of trust of April 1, 1908, made by Thomas Finnerty and wife, was in the ordinary form and conveyed the property to the trustee, Gustave Dammert, by the following words of conveyance:

"And do by these presents, grant, bargain and sell, convey and confirm, unto the said party of the second part, forever, all the following described real estate (describing the property). And the possession of said described premises is now delivered unto the said party of the second part. To have and to hold the same with the appurtenances, to the said party of the second part, and to his successor or successors in this trust forever," etc.

After the usual provisions of sale; in case of default in payment of the notes secured, the deed of trust further provided: "And upon such sale to execute a deed in fee simple of the property sold to the purchaser." There was also a further provision by which the trustee leased the property to the grantors until the deed of trust was satisfied, or until sale of the real estate thereunder, for one cent per month, payable upon demand, and providing that grantors should surrender peaceable possession of said premises and every part thereof sold under said deed of trust to the purchaser, within ten days after such sale, without notice or demand therefor.

By deed dated January 18, 1915, but not recorded until September 12, 1917, for a recited consideration of $500, Thomas Finnerty and wife conveyed said property by quitclaim deed to their daughter, Mary Grace Finnerty, who was Mary Grace Davis, at the time of the trial of this case. On November 19, 1917, Kate Finnerty died, leaving as her sole heirs, her said daughter, Mary Grace Davis, and her husband, Thomas Finnerty, her surviving.

It was admitted that defendant, Thomas Finnerty, was in possession when this suit was brought and up to and including the date of the trial and judgment. The monthly rents were of the value of $25.

Pending the appeal of the wife's injunction suit, and on February 15, 1915, said substituted trustee, Edward W. Foristel, after having duly advertised the same, sold and conveyed, as such trustee, the interest of said Thomas Finnerty in said property to plaintiff, Blanch I. Graham, who brought this ejectment suit March 14, 1918.

The court tried the case sitting as a jury.

The defendant asked the court to declare the law to the following effect: First, that under her quitclaim deed, Mary Grace Davis is the owner of the property, and the finding and judgment must be for the defendant. Second, there was no evidence that the notes described in the deed of trust were not paid at maturity, and the trustee's said deed was void. Third (The refusal of this declaration is not complained of). Fourth, that the sale of the real estate mentioned by Edward W. Foristel, trustee, on the 15th of February, 1915, is and was null and void, and the purchaser acquired no title thereby to said property.

These declarations the court refused, and thereupon, on August 4, 1919, rendered judgment against defendant for possession and for damages in the sum of $493.37 and $25 monthly rents and profits.

After vainly moving for a new trial, defendant appealed to this court.

II. Appellant contends that because the deed of trust recited that "whereas first parties (Finnerty and wife) have been jointly indebted to the third party for borrowed money in the sum of $6,000," to secure which with interest they have executed a note payable to said third party for $6,000, etc., and there having been no such joint indebtedness, and no such joint note, the deed of trust did not describe, and was not intended to secure, the $6,000 note, shown in evidence, executed by Thomas Finnerty alone, and consequently said deed of trust was void as to both Thomas Finnerty and his wife.

But we hold that such a variance in the description of the note secured was not fatal and did not avoid the deed of trust as to Thomas Finnerty; that parol and extrinsic evidence of the circumstances and what was actually done by the parties was admissible to show the note actually intended to be secured. The evidence showed, and it was admitted, that the only $6,000 note and $150, interest notes corresponding in date, maturity, and payee, to wit, Lillie Willemsen, to the notes described in the deed of trust, were the said notes executed by said Thomas Finnerty alone, and by him transferred, as secured by said deed of trust, as collateral security for the payment of the purchase price of the saloon which he purchased from Crebs. The conclusion is irresistible, therefore, that such individual notes of Thomas Finnerty were the notes intended to be secured by said deed of trust and described therein. Indeed, he would be estopped to contend to the contrary, after pledging them, as he did, to Crebs, as so secured. Furthermore, the decree in the former suit between the parties found as a fact: "That said notes are the same notes which are referred to in said deed of trust." It is well settled that such a variance between the notes intended to be secured and their...