Granite Mortgage Co. v. Delmar Realty Co

• Citation: 254 S.W. 97
• Decision Date: 31 July 1923
• Docket Number: No. 23479.,23479.
• Parties: GRANITE MORTGAGE CO. v. DELMAR REALTY CO. et al.
• Court: United States State Supreme Court of Missouri

254 S.W. 97

GRANITE MORTGAGE CO. v. DELMAR REALTY CO. et al.

No. 23479.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Rehearing Denied August 15, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Suit by the Granite Mortgage Company against the Delmar Realty Company and others. The bill was dismissed and plaintiff appeals. Affirmed.

Christian F. Schneider, of St. Louis, for appellant.

Frank E. Braden and McDonald & Just, all of St. Louis, for respondents.

LINDSAY, C.

The Granite Mortgage Company, as assignee of one George A. Currier, brought this suit to have it decreed that defendant Delmar Realty Company holds title to 50 certain lots, situated in the city of St. Louis, in trust for the plaintiff, and for the individual defendants, who are the widow and daughter of one John Moore, deceased. John Moore died July 24, 1917. At the time of his death, and for two or three years prior thereto, he owned 239 of the 250 shares of the capital stock of the Delmar Realty Company. Of the remaining shares, Louise J. Moore owned 10, and. Frank E. Braden, an attorney, owned one. Moore was the president and Braden the secretary of the company. Currier maintained an office, and appears to have been engaged in real estate business, and it appears also that prior to the transaction here involved he and Moore had been occasionally associated in certain real estate deals. The lots in controversy, in 1915, and prior to the transactions resulting in this suit, were owned by Mrs. Amelia Mooredale. At that time Mrs. Frances Eberle held a deed of trust upon a part of the lots. She also had obtained a judgment for $500 against Mrs. Mooredale. There was at the time a large amount due for general and special taxes assessed against the lots. Through negotiations which were conducted by Currier with A. G. Eberle, an attorney, and son of Frances Eberle, the judgment in favor of the latter was assigned to John Moore, the deed of trust held by Mrs. Eberle was foreclosed, and the lots therein conveyed were bought by A. C. Eberle, who conveyed them to Harry J. Younger. The remaining lots were sold at sheriff's sale under the judgment and were bid in by Braden, the attorney and secretary of the Delmar Realty Company. The sheriff's deed was made to Helen Watkins, a stenographer in the office of Braden, or of the Realty Company. Helen Watkins then quitclaimed these lots to said Harry J. Younger. Younger executed to John Moore notes equal in number to the number of lots, each note being far $250, and also executed deeds of trust accordingly upon the several lots. Younger next conveyed all of the lots to Delmar Realty Company by quitclaim deed. Currier paid no part of the consideration to Mrs. Neither Helen Watkins nor Younger paid or received any consideration. Younger, was a chauffeur, who had worked for Currier. These various transactions whereby the title was placed in Delmar Realty Company were completed in. September, 1915. On the 5th day of January, 1921, Currier executed a quitclaim deed to plaintiff, covering the iota in suit. On January 21, 1921, plaintiff brought this suit.

Plaintiff alleged:

"That on or about the ____ day of June, A. D. 1915, it was understood and agreed by and between said John Moore, then the husband of defendant Louise J. Moore, George A. Currier, and on or about the 24th day of June, 1916, the said John Moore signed, executed and delivered to said George A. Currier his statement or declaration in writing of that date in which he certified that said George A. Currier and he (said John Moore) were and are each the owner of an undivided one-half interest in and to the fee-simple estate in and to lots number [giving the numbers of the lots], then carried in the name of Delmar Realty Company."

The petition alleged that Delmer Realty Company paid no consideration for and had no interest in said lots and held title to the came for the convenience of said John Moore and said George Currier. The petition further alleged:

"That it was at that time further understood and agreed by and between said Currier end said Moore that in consideration of 50 deeds of trust on said lots, each in and for the sum of $250, delivered to said. Moore, he (said Moors) would forthwith pay all sewer bills and general taxes against said lots including those for the year 1913, and said Moore agreed that he would `carry said deeds of trust without interest until said Currier shall make sales thereof'; that said Currier should have charge of selling said lots, but should not receive any commission for making sales of same; and that the proceeds of ouch sales over and above said deeds of treat, as aforesaid, should be equally divided between the said Currier and said Moore, share sad share alike."

It alleged that Louise J. Moore as administratrix of the estate of John Moore had inventoried as the property of John Moore 239 shares of the capital stock of Delmar Realty Company, but that in truth and in fact said. John Moore was the sole owner of the stock of that company; that the administratrix had also inventoried and listed as the property of said estate all of the 50 notes and deeds of trust; that the estate was the owner of said notes, but that plaintiff bad no knowledge as to whether John Moore, or his estate, had paid said sewer tax bills and taxes of any part thereof. The petition alleged that said sewer tax bills, if unpaid, were bearing a heavy penalty for which the estate of John Moore was liable, as he was by his said agreement obliged to pay the same in 1916. It was also alleged that it was a favorable time to sell the lots. The relief asked by the petition was that the court "order, adjudge, and decree that the estate of the said John Moore pay forthwith all the sewer bills and taxes, including general taxes for the year 1916 on said lots, and that it be ordered, adjudged, and decreed that the plaintiff herein as such assignee of said George A. Currier has a half interest in and to said lots subject only to a deed of trust and note for the amount of $250 against each lot; that the said Delmar Realty Company has no interest in or to said lots, and is holding the title to the same as trustee for the plaintiff and the defendant estates subject to aforementioned agreement; and that said Delmar Realty Company make deed or deeds to said lots as they may be sold at reasonable prices."

The statement or declaration referred to in the petition is as follows:

                             "St. Louis, Mo., June 24th, 1916
                

"This is to certify that G. A. Currier and myself are each the owners of a one undivided half interest in all of the lots situated in blocks numbers 5388, 5389, 5392 and 5393 of the City of St. Louis, Mo. Part of said lots fronts on Amelia avenue and part on Gilmore avenue, and being all and the same lots that are now being carried in the name of the Delmar Realty Company, a corporation, and conveyed by Helen A. Watkins and Harry J. Younger, and that the Delmar Realty Company has no interest in said lots whatever.

"And it being agreed between the said Currier and myself that, for and in consideration of fifty deeds of trusts, each for the sum of two hundred and fifty dollars, and each secured by one of the said lots, I hereby promise to pay all of the sewer bills and general taxes that is against said lots, including this year's taxes, and, as a further consideration, I promise and agree to carry said deeds of trusts without interest until said Currier shall make sales thereof.

"I also agree to pay for a separate certificate of title for each lot. And it is further agreed that said Cornier shall have full and complete charge and selling of said lots, but that he is not to receive any commission for selling the same, and that the proceeds from the sale thereof over and above the two hundred and fifty dollar deed of trust on each lot shall be divided equally between the said Currier and myself, share and share alike."

The defendants filed general denials, and also denied specially the genuineness of the written signature of John Moore to said statement. The trial court after hearing the evidence dismissed plaintiff's bill. The court was not requested to state in writing the conclusions of facts found separately from the conclusions of law, and did not so Proceed, but did file a memorandum setting forth the conclusions resulting in the dismissal of the bill.

The nature of the case requires an examination of the evidence. The plaintiff's case rests mainly upon the alleged statement, or declaration, and the admission therein made. The testimony as to the circumstances attending the signing of this statement by Moore was given by Currier's daughter, who worked in his office in the summer of 1916. She testified that her father wrote out the statement in longhand and gave it to her, telling her to typewrite it, and to have the typewritten statement signed by John Moore when he should come to Carrier's office. She testified that she made the copy, and that thereafter, on a Saturday, Moore came to the office, and she gave him the statement; that he read it and signed it, and laid it on a desk; that she filed it away among her father's papers; that it was dated the day it was signed. Some months later she made a trip to the east, was later married, and had thereafter lived in an eastern city. She testified that she said nothing to her father about the signing of the statement, and that he never asked about it, nor made any inquiry whatever until January, 1921, when he wrote to her an inquiry about the statement. Currier's testimony was that he did not know it had been signed and did not inquire. He testified:

"Q. You had forgotten about this contract that covered the matters specifically in writing, at the time you spoke to Mr. Vrooman, until about two years or more after Mr. Moore's death? A. ...