April
1891
Appeal
from Washington Circuit Court. -- Hon. J. L. Thomas, Judge.
The
plaintiffs, who are husband and wife, sought by this
proceeding to have a certain warranty deed, executed by them
in September, 1879, whereby lot 75 in Poplar Bluff, Missouri
the property of the wife, was conveyed to Hill, Nall & Co.
declared a mortgage. What the recital or contents of this
deed were does not appear, as the same was not offered in
evidence.
A
contract was filed with the petition of plaintiffs, which was
thought to convert the warranty deed into a mortgage, and is
as follows:
"This
agreement made the second day of September, 1879, by and
between Nicholas Hach, of St. Louis, Missouri, of the first
part, and Hill, Nall & Co., of Fredericktown, Missouri, of
the second part, witnesses that the said party of the first
part contracts and agrees to and with the party of the second
part to convey to said party of the second part town lot
number 75, in the town of Poplar Bluff, Butler county,
Missouri; also all the boilers, engines, saws, shafting,
machinery and fixtures connected with and belonging to or
appertaining to the stave factory now on said lot, to
transfer and deliver to said party of the second part the
steamboat Clara I., number 2, now on Black River, which boat
is to be used exclusively in connection with the said
factory; to give said party of the second part his best
services and experience in running said factory under the
direction and control of said party of the second part; that
the said party of the second part contracts and agrees with
said party of the first part to complete said factory at and
within reasonable cost and time, to equip the same for a
stave and head factory, to keep an account of all money
expended, and on the expiration of this contract to reconvey
to said party of the first part said factory and town lot and
all machinery in said factory together with said steamboat,
provided said party of the first part pays to said party of
the second part all indebtedness due them for the completion
of said factory or on any other account whatever, to pay said
party of the first part nine per cent. net on all staves,
heading or products of any kind made at said factory, and to
give him a monthly statement of all sales of such products
and to pay him monthly his portion of such sales.
"If
said party of the second part determines it is unprofitable
to run said factory and stops the same, or if said boat is
lost by sinking, explosion or fire, said party of the first
part to have or make no claim for damages. This contract to
continue in force two years from date. Taxes on said realty
and insurance on said factory and machinery to the extent of
$ 3,000 in favor of the party of the second part to be paid
by the party of the first part, and, in the event of loss by
fire, the insurance money to be used in rebuilding or
refurnishing said factory, or, by mutual consent, to be used
in adjusting the accounts of the parties hereto; certain
shafting, jointures, dry-house material now owned by party of
the first part, and real in said factory to be placed therein
soon as conveniently can be done.
"Witness
our hands and seals at St. Louis, Missouri, this second day
of September, 1879.
"Witness,
H. Waldstein.
"[Seal.]
Nicholas Nach,
"Hill,
Nall & Co.
"Per
W. C. Dines."
This
contract as will have been seen was made by the husband alone
in his own name, and was unacknowledged and unrecorded.
It
would seem that it was not made at the same time, but that it
was made subsequently to the time the warranty deed was
executed. Plaintiffs, in their petition, allege that the
contract had its origin in certain adverse circumstances
which had happened him, to-wit: His stave factory situated on
the lot named, on which he had done business for years,
unfortunately was partially burned down, and, not having
sufficient funds of his own, he appealed to the defendants,
Hill, Nall & Co., for assistance; that said firm agreed to
assist him, and in consequence the contract in question was
made; that Hach, the husband, fully complied with the terms
of his agreement and paid the firm with which he contracted
all that was owing them for money expended in the purchase of
machinery and the repair of the factory; that they failed to
comply with the contract on their part in giving a statement
of sales of the products of the factory, and that on a
settlement a large sum would be found due the husband. The
prayer is for a decree declaring the warranty deed a
mortgage, and that defendants be required to convey the
property to the wife, Clara E. Hach, and for other and
further relief.
The
answer of the firm, Hill, Nall & Co., was a general traverse
of the allegations of the petition; an allegation that the
husband, Hach, in consequence of the expenditures made by
them under the contract, had become indebted to them in the
sum of $ 10,000; that Hatch failed to perform the conditions
of the contract, but had abandoned the same; that they fully
complied with the conditions of the contract on their part,
and asking that if the court should construe the warranty
deed as a mortgage, that then a foreclosure of the same be
granted in order to pay said indebtedness of the husband.
The
answer of defendant Craig was to the effect that defendants
had made a conveyance to him in September, 1883, for the
benefit of creditors, who, in consideration of such deed
being made, extended the time for the collection of their
debts for two years; that, in 1884, defendant was also
appointed receiver of said firm; that neither the defendant,
nor the beneficiaries under the deed to him, had any notice
of any infirmity in the title of Hill, Nall & Co.
At the
close of the testimony the court entered the following
decree: "Now at this day come the respective parties to
this cause, and, the court proceeding to render its finding,
judgment and decree upon the pleadings and evidence
heretofore submitted to the court the court doth find from
the pleadings and evidence, that the deed mentioned in the
pleadings executed by plaintiffs to defendants, Hill, Nall & Co., dated September 1, 1879, was intended by the parties
thereto as a mortgage, to secure the repayment of the latter
of all sums of money that they might advance to said Hach, to
rebuild and equip the stave and heading factory mentioned in
the pleadings, and for advances made to ship and sell the
staves and headings made by the factory, and that plaintiff
has a right to redeem the property described in said
petition, as follows, to-wit: Lot number 75, of the town of
Poplar Bluff, except a small portion thereof, which had been
conveyed to the St. Louis, Irom Mountain & Southern Railway
Company, by paying Hill, Nall & Co. whatever sum plaintiff
may owe them on the account aforesaid. And the court further
finds from the pleadings and evidence that Hill, Nall & Co.
advanced to said Hach, under said agreement, sums of money
for rebuilding and equipping the stave and heading factory,
and on account of the business connected with the manufacture
and sale of staves and headings made by said factory,
amounting to thirty-two thousand, six hundred and thirty-six
dollars and five cents ($ 32,636.05); and that they realized
from the sale of staves and headings twenty-two thousand,
eight hundred and thirty-six dollars and seventy-five cents
($ 22,836.75), and raised the further sum of forty-six
hundred and seventy-three dollars and forty-eight cents ($
4,673.48) from said Hach in cash from various sources, making
twenty-seven thousand, four hundred and ten dollars and
twenty-three cents ($ 27,410.23) of credits said Hach is
entitled to, leaving a balance of forty-seven hundred and
twenty-five dollars and seventy-two cents ($ 4,725.72); and
that this balance was due them in September, 1881. The court
further finds that Hill, Nall & Co. are entitled to interest
on this balance from September 2, 1881, to this date, at the
rate of six per cent. per annum, which amounts to fifteen
hundred and eighty-five dollars and forty-six cents ($
1,585.46), which, added to the $ 4,725.72, makes $ 6,311.18
now due defendants. It is, therefore, considered, adjudged
and decreed by the court that the equity of redemption in the
premises and property heretofore described be foreclosed, and
that defendants recover of plaintiffs the said sum of
sixty-three hundred and eleven dollars and
eighteen-hundredths dollars ($ 6,311.18), the debt aforesaid
found to be due, together with their costs to be levied on
the real estate and property in said deed, described as
follows, viz., lot 75, of the town of Poplar Bluff, Missouri,
except a small portion thereof on the east side thereof,
which has been conveyed to the St. Louis, Iron Mountain & Southern Railway Company, and that a special fieri facias
forthwith issue from this court, directed to the sheriff of
Butler county, Missouri, to enforce this decree, and, upon a
sale thereunder, the said sheriff shall pay, first, the
expense of such sale and costs of this suit, and, second, the
aforesaid sum found to be due defendants, with six-per-cent.
interest thereon per annum, from this date to the day of
sale, and the remainder he shall pay to plaintiff."
From
this decree plaintiffs appeal. The other facts sufficiently
appear in the opinion of the court.
The
foregoing statement of the facts, made by Chief Justice
Sherwood, has been adopted by me in preparing the
accompanying opinion as a clear and lucid statement of the
record.
Reversed and remanded.
