Hammerslough v. Cheatham

• Decision Date: 31 October 1884
• Citation: 84 Mo. 13
• Parties: HAMMERSLOUGH, Appellant, v. CHEATHAM et al.
• Court: Missouri Supreme Court

84 Mo. 13

HAMMERSLOUGH, Appellant,

v.CHEATHAM et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Cook & Gossett for appellant.

If defendant, Mrs. Cheatham, executed the deed of trust charged in the petition, to secure the note therein described, she could not afterwards buy in a title outstanding at the time the deed of trust was given, and hold the land by such title against a purchaser under the deed of trust. This is upon the plainest principle of equity. Having pledged the land, as owner, as security for a debt, she is estopped from asserting an adverse title, independent of any statutory provision or the effect of any covenants in her deed. Bogy v. Shoab, 13 Mo. 379; Williams v. Nisley, 2 Serg. & Rawle 515; 12 Mo. 174. But this is also covered by the statute. R. S., sec. 3940; G. S. 1865, 442, sec. 3; Alexander v. Schriber, 13 Mo. 271. The estate which this deed of trust purported to convey to the trustee, was an indefeasible estate in fee simple. The fact that upon payment of the note the estate would revert to the grantor, in no way affected the quality of the estate granted. And the effect of the covenants implied in the granting words, was to estop the grantor from setting up an adverse title. R. S., sec. 675; G. S. 444, § 8; Collier v. Gamble, 10 Mo. 467; Norfleet v. Russell, 64 Mo. 176; Maguire v. Riggins, 44 Mo. 412; Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174. The deed of trust was a valid conveyance binding on Mrs. Cheatham. The finding of the lower court is not merely against the overwhelming weight of the evidence, but as to the most important findings in the case there is absolutely no evidence to sustain them. This court is not concluded in an equity case by the finding of the trial court as to facts. 16 Mo. 455; 48 Mo. 44; 47 Mo. 322. Even though it be true that the note and deed of trust were printed blanks when signed by her, yet she entrusted them to Crandall to fill up over her signature, and the fact that they were in blank did not affect their validity when completed. Field v. Stagg, 52 Mo. 534. It is a familiar principle that one who puts it into the power of another to practice a fraud must bear the loss. Rice v. Groffman, 56 Mo.; 61 Mo. 586. The evidence shows a clear ratification by Mrs. Summers of the delivery of the deed of trust by her agent. The court erred in its ruling admitting testimony for the defendant. The execution of the deed of trust, not being denied under oath, was admitted. R. S., 1879, sec. 3653. The answer of Hammerslough in the Wyandotte case was inadmissible.

Respondents filed no brief.

PHILIPS, C.

This is a suit in equity to set aside a certain deed held by the defendant, Susan, to certain lands in Jackson county, and to vest whatever title she holds thereunder in the plaintiff. The history of this controversy is substantially as follows: In May, 1872, Susan A. Summers, a widow, owned the land in controversy. She had acquired it under deed from one E. P. West. In the month aforesaid one Elijah E. Kellogg, of Ann Arbor, Miehigan, came to Kansas City to loan some money. He met one J. J. Crandall, a practicing lawyer of that city, with whom he soon struck up an acquaintance, Crandall representing to him that he was a native of the state of Michigan. On making his business known to Crandall the latter informed him that he had a client, Mrs. Summers, the defendant, who desired to borrow. Crandall saw Mrs. Summers, at whose house he was then boarding, and informed her about this money. He stated to her that the amount was about $1800. She did not want so much; $400, she said, was as much as she required; but finally consented to take it all and pay fifteen per cent. interest therefor. Crandall brought up a blank deed of trust and a blank note for her to sign, which she did, Crandall stating that he had not time to fill up the same then, or something to that effect, took the same away with him. Mrs. Summers claims that she never acknowledged the deed; but Crandall, who was a notary public, after going to his office filled up the blanks and wrote out the acknowledgment in the presence of Kellogg. Crandall, so states the defendant, was to return with Kellogg, or bring him around when the negotiations were completed, and consummate the transaction by paying over to Mrs. Summers the money.

On examination of the abstract of title to the land of Mrs. Summers, which land was to be given as security for the loan, some defect was discovered, which delayed the conclusion of the contract. On the return that evening of Crandall to Mrs. Summers' residence he stated to her that the negotiations had fallen through; she says that was the last she heard of the matter. The land having been bought by Mrs. Summers from said West, he was applied to to correct the alleged defect. West, to make the matter satisfactory, signed the note as surety for Mrs. Summers, at Crandall's suggestion, and gave a deed of trust as collateral security, on a tract of land owned by him in Wyandotte county, Kansas. Thereupon Kellogg made the loan, paying the money over to Crandall, and Crandall delivering to him the note and deed of trust from Mrs. Summers. After this, Crandall stated to Kellogg that he would like to have him credit the note of Mrs. Summers with $600, and let him have that sum of the money so loaned, as there was more than Mrs. Summers wanted. This, Kellogg did, taking from Crandall a deed of trust on land owned by him to secure the $600. Crandall paid over no part of this money to Mrs. Summers, nor did she learn until long afterward that Crandall had effected the loan and delivered over her note and deed. When she discovered this fact she demanded that he take her deed from record. There seems to have been an attempt between her and Crandall to adjust the matter by submitting the controversy to arbitration. But, Crandall failing to give bond as required by Mrs. Summers' counsel, the arbitration failed. On the maturity of the note so held by Kellogg, he placed the same in the hands of F. M. Black, an attorney at law of Kansas City, to foreclose the deed of trust. The land was accordingly sold under the trust deed, and Black bought the same in for his client. West, in the meantime, sold the Wyandotte land to the plaintiff, subject to the mortgage given as aforesaid by West to Kellogg. Kellogg then began proceedings to foreclose his said mortgage on the Wyandotte lands, making West, Hammerslough, the plaintiff herein, and Mrs. Summers parties defendant. Mrs. Summers, however, was never notified of the pendency of said suit, nor did she appear thereto. The suit as to her was dismissed.

To this last suit Hammerslough appeared, and, in his answer, set up in defence the facts hereinbefore detailed in respect of the manner of obtaining the deed and note from Mrs. Summers; and, in an affidavit for a continuance, set out the same facts, asking for a continuance on account of the absence of Mrs. Summers, by whom he expected to prove the said matters pleaded in the answer. Kellogg prevailed in the suit, and during the pendency of said action on appeal in the Supreme Court, Hammerslough, meeting with a favorable opportunity, made sale of said land in Kansas, and paid off the judgment of Kellogg. In the trade thus made, he took from Kellogg an assignment of the note held by him as aforesaid on Mrs. Summers, (only a small portion of which seems to have been satisfied by the foreclosure sale at which Black purchased). Black thereupon made to Hammerslough a deed of quit-claim to the Summers land. The land embraced in the Summers deed of trust was subject to a deed of trust placed upon it by West before he conveyed to Mrs. Summers. This deed of trust was foreclosed, and at the sale one H. L. Glover became the purchaser, but with the money and for the use of Mrs. Summers. In a suit in equity by Mrs. Summers against Glover the title of Glover was divested and vested in Mrs. Summers. Since the transactions aforesaid Mrs. Summers has intermarried with the co-defendant, Cheatham.

The plaintiff, Hammerslough, brought the pending suit against Mrs. Cheatham and husband, setting up, substantially, the facts touching the conveyances and foreclosure sales and purchases aforesaid, omitting, of course, the facts relative to the manner in which the deed was obtained from Mrs. Summers, and claiming that he was an innocent purchaser for value. The petition alleges that the deed of trust made by Mrs. Summers contained the words “ grant, bargain and sell,” implying the covenants which the statute attaches to the employment of such words in deeds of conveyance. It alleges that she is estopped by her said covenant from claiming the land under her said purchase under the West trust deed against the plaintiff, as purchaser under her trust deed to Kellogg. The prayer of the petition is to divest her legal title thus acquired and to vest the same in plaintiff.

The answer of defendants set up the facts relative to the manner in which her deed to Kellogg was obtained, alleging that the same was not executed or delivered by her, and asking for the divestiture of the title acquired by plaintiff to said land, etc. The court found the issues for the defendants, and rendered judgment as prayed in the answer. The plaintiff has brought the case here by appeal.

I. Several questions have been discussed by counsel for appellant. The respondents have filed no brief. The controlling question presented for determination in this record is, was the deed of trust from Mrs. Summers to Kellogg ever delivered by her. If it was not delivered by her it is of no more effect than if she had not signed it....