Hamlin v. Hawkins

• Citation: 61 S.W.2d 348,332 Mo. 1098
• Decision Date: 12 June 1933
• Docket Number: 30867
• Parties: O. T. Hamlin, Appellant, v. G. W. Hawkins et al
• Court: United States State Supreme Court of Missouri

61 S.W.2d 348

332 Mo. 1098

O. T. Hamlin, Appellant, v. G. W. Hawkins et al

No. 30867

Supreme Court of Missouri

June 12, 1933

Appeal from Greene Circuit Court; Hon. Warren L. White Judge;

Affirmed.

Hamlin Hamlin & Hamlin for appellant.

(1) The note and deed of trust given to secure the same by Eagleburger to Shelton dated February 3, 1920, for the sum of $ 1800, was subject to the disaffirmance of Eagleburger within two years after attaining his majority. [R. S. 1929 sec. 3059.] (2) The Bank of Hollister was not a holder in due course of said note and deed of trust, for value. (3) The note executed by Sheltons to the Bank of Hollister for the sum of $ 1910, and secured by a deed of trust on the 5th day of August, 1922, was without consideration, and the sale by the trustee under that deed of trust did not convey the title to the property in controversy to the bank. On Point One, the note and deed of trust were subject to disaffirmance by Eagleburger any time within the statutory period of two years after he attained his majority and they were tainted with that infirmity. When Eagleburger disaffirmed, and the Circuit Court of Polk County, Missouri, by its judgment annulled the note and deed of trust that automatically annulled the note and deed of trust executed by Sheltons to the Bank of Hollister on the 5th day of August, 1922, for want of consideration. "The effect of the disaffirmance of a contract of purchase of land entered into by an infant is to render it void ab initio; the sureties on a note given by the infant for the purchase money are no longer liable." [31 C. J. 1025, par. 79.] The Supreme Court of Indiana in the case of Rice v. Boyer, 9 N.E. 420, discussing contracts of infants, said: "Where a voidable act of an infant is disaffirmed it avoids the contract ab initio. . . . If this is the law then when the appellee repudiated his contract, he destroyed it for all purposes. It no longer bound him nor could he take any benefit from it. If the contract was destroyed back to the beginning it ceased to be operative for anybody's benefit." Shrock v. Crowl, 83 Ind. 243; Mustard v. Wahlford, 15 Gratt 329. In the case of Mette et al. v. Feltgen, 27 N.E. 911, the court said: "A deed made by a minor and revoked by her within three years after attaining majority passes no title." In that state the time for disaffirmance was three years. "Where an infant's agreement to purchase land has been assigned by the infant during his minority, it has been held that the assignee cannot enforce a specific performance thereof without proof of some affirmance by the infant both of the original agreement and the assignment thereof." [31 C. J. 1025, par. 79.] That rule applies in this case as to the right of the bank to foreclose the deed of trust executed by Eagleburger. If the Eagleburger note and deed of trust represented a valid indebtedness (which we deny) the execution of the Shelton note and deed of trust August 5, 1922, did not "create a new indebtedness or add to the previous one, but merely changed its form." Consolidated School Dist. No. 4 of Greene County v. Day et al., 43 S.W.2d 430; State ex rel. Sedalia v. Weinrich, 291 Mo. 461. (4) The Bank of Hollister was not a holder in due course for value of the $ 1800 note and deed of trust executed by Eagleburger to Sheltons. Bank v. Fox, 9 S.W.2d 1070. Shelton could not have recovered from Eagleburger by reason of Eagleburger's minority and the bank not being a purchaser in due course for value had no greater right than Shelton. Kriezek v. Treybal, 15 S.W.2d 382. The note and deed of trust executed by Eagleburger carried the infirmity of his minority and the bank if it attempted to purchase said paper did so with notice of said infirmity, and said infirmity continued until Eagleburger disaffirmed the instruments aforesaid. When Eagleburger disaffirmed the note and deed of trust and the Circuit Court of Polk County adjudged said note and deed of trust void that judgment automatically avoided the note and deed of trust executed by Sheltons to the bank, by reason of a total failure of consideration. R. S. 1929, sec. 2657. If we are correct on the last proposition the court erred in admitting in evidence the deed of trust executed by Sheltons to the Bank of Hollister on the 5th day of August, 1922, and the trustee's deed executed and delivered to the bank on the 21st day of August, 1926, based on the foreclosure of the deed of trust aforesaid. Schelp v. Nicholls, 263 S.W. 1017.

Sharp & Blunk for respondents.

(1) The execution shows that it was issued on May 25, 1925, and the proof of notice of the sheriff's sale under said execution as found of record as a part of the Sheriff's Deed to O. T. Hamlin in Book 80 at page 447, Deed Records of Taney County, Missouri, shows that said execution was made returnable to the September Term, 1926, of said Polk County Circuit Court. Which was the fourth term of said Polk County Circuit Court to which said execution was made returnable, and therefore said execution was void. R. S. Mo. 1929, sec. 1155. (2) Even though Paul Eagleburger was an infant at the time he executed his note to T. J. Shelton for the sum of $ 1800, and when T. J. Shelton endorsed said note and sold the same to the Bank of Hollister, for a valuable consideration, T. J. Shelton became liable for the payment thereof. (3) "Even though the claim which the Bank of Hollister had on T. J. Shelton, as endorser on the note which was given to T. J. Shelton by Paul Eagleburger and sold to the Bank of Hollister may have been discharged by act of law upon the disaffirmance of the same by the minor Paul Eagleburger, on his attaining his majority, the moral obligation on the part of T. J. Shelton to repay the money received is a sufficient consideration for a new note. 8 C. J. 234, sec. 368; Wislizenus v. O'Fallon, 91 Mo. 184. (4) A preexisting debt or liability is sufficient consideration to support a mortgage given as security therefor, and there need not be a new consideration at the time of making the mortgage. 41 C. J. 386, sec. 202. (5) The deed of trust executed on the 5th day of August, 1922, by T. J. Shelton and Edna Shelton, his wife, to T. L. Toon, trustee for Bank of Hollister, beneficiary, conveying the land in controversy contained the words, "grant, bargain and sell," and were covenants of warranty of title, and any title acquired by the mortgagor to the lands conveyed by said deed of trust after the execution of said deed of trust and during the continuance thereof immediately passed to the mortgagee and was bound by the lien. 41 C. J. 478, sec. 395; 41 C. J. 479; Cockrill v. Bane, 94 Mo. 444; Boyd v. Haseltine, 110 Mo. 207; Hume v. Hopkins, 140 Mo. 72; Seaman v. Seaman, 181 S.W. 24; Graham v. Finnerty, 232 S.W. 132. (6) When T. J. Shelton received the title to the lands in controversy on the 3rd day of April, 1933, by the quitclaim deed executed by Paul Eagleburger conveying said lands to said T. J. Shelton, the title thereto after vesting in T. J. Shelton, immediately passed to the benefit of the Bank of Hollister, the mortgagee, in the deed of trust executed on the 5th day of August, 1922, by said T. J. Shelton and Edna Shelton, to T. L. Toon, trustee for Bank of Hollister, mortgagee, for said deed of trust was still in full force and effect. 41 C. J. 479; Cockrill v. Bane, 94 Mo. 444; Seaman v. Seaman, 181 S.W. 24; Graham v. Finnerty, 232 S.W. 132.

OPINION

Hays, J.

This is an action in two counts, one in ejectment and the other to determine title. The defendants prevailed below and the cause is here on plaintiff's appeal. As no error is assigued upon the disposition made of the count in ejectment no notice need be taken of it. The facts alleged in the second count are substantially as follows:

One T. J. Shelton (the admitted common source of title) sold and by warranty deed dated February 3, 1920, conveyed to one Eagleburger, an infant between eighteen and nineteen years of age, an eighty-acre tract of land situate in Taney County, to-wit: The northeast quarter of the southeast quarter of section twenty, and the northwest quarter of the southwest quarter of section twenty-one, in township twenty-two of range eighteen, for a consideration of $ 3700. The vendee paid $ 1900 in cash and for the remaining $ 1800 executed his promissory note to Shelton due in ten months from that date and bearing interest from date at eight per cent per annum, and as security therefor executed a deed of trust of the same date to the use of said Shelton. Eagleburger attained his majority on May 14, 1922. Thereafter, on September 23, 1922, he filed in the circuit court of said county a suit to disaffirm said transactions and for a recovery of the $ 1900 paid. Upon change of venue that cause was transferred to the Circuit Court of Polk County, where on May 25, at the May Term, 1925, he was awarded a judgment and decree of annullment as prayed and for $ 1450 damages. The decree also divested Eagleburger of all title of said land and purported to reinvest the title in Shelton; on May 26, 1925, execution was issued on the judgment to the sheriff of Taney County, who on the same day levied it upon said land and thereafter sold the land at the price of $ 100 under execution on April 19, 1926, to the plaintiff, hereinafter referred to as the appellant, and accordingly executed his deed as sheriff to said purchaser. It is alleged that defendant bank had knowledge of all the facts and proceedings aforesaid, and it is further alleged that the appellant became, through the conveyance and proceedings stated, and is the owner in fee of said land.

The answer specifically admitted each and all the allegations of the petition, save the knowledge which the bank was charged with possessing and the...