Hendricks v. Woods

• Decision Date: 31 October 1883
• Citation: 79 Mo. 590
• Parties: HENDRICKS v. WOODS et al., Appellants
• Court: Missouri Supreme Court

79 Mo. 590

HENDRICKS

v.WOODS et al., Appellants

Supreme Court of Missouri.

October Term, 1883.

Appeal from Monroe Circuit Court.--HON. JOHN T. REDD, Judge

AFFIRMED.

This was a suit brought by John Hendricks and Wm. P. Hendricks against James F. Woods and Wm. C. Smith, to enjoin the sale of certain land under a deed of trust given by the plaintiffs to secure a note for $530. Woods was trustee and Smith beneficiary in the deed of trust. The petition alleged that the debt for which the note was given was paid in full before the execution of the note, and that the note and deed of trust were obtained by misrepresentation, fraud and imposition.

The facts out of which the controversy arose, were as follows: In May, 1867, judgment was rendered in the circuit court of Shelby county against John Hendricks and one Wm. Hendricks, and in favor of one Rowland, for $400.16. This judgment, though in the name of Rowland, really belonged to Smith. In the fall of 1867 execution was issued and placed in the hands of J. M. Collier, sheriff of Shelby county, who in due time made return that he had received on it, two sums, $130 and $25.56, and that the balance was unsatisfied. In June, 1875, Smith had an aliasexecution issued for this balance, and on the 24th day of that month the plaintiffs, in settlement of this execution, gave the note and deed of trust in question, the deed of trust containing the usual power of sale on default in the payment of the note.

At the trial the plaintiff offered in evidence the original execution and the indorsements thereon. These were as follows: One dated October 28th, 1867, showing a levy on 160 acres of land as the property of John Hendricks; one dated November 23rd, 1867, showing receipt of $130; one dated November 25th, 1867, showing receipt of $25.56; and one dated November 26th, 1867, as follows: “I return the within execution not satisfied.” All these were signed by Collier as sheriff. There was also an indorsement signed by L. Dobbin, the clerk of the circuit court of Shelby county, which, except for the interlineations and erasures hereafter mentioned, read as follows: “Received on the within execution $300 this 27th day of September, 1867.”

On the part of the plaintiffs, Dobbin testified that he issued this execution as clerk; that some time in October, 1867, John Hendricks came into the clerk's office and paid him $300, to be applied on the Rowland judgment; that the execution had already been issued, but had not been delivered to the sheriff; that he put the money into an envelope, one end of which was open, and on the same day handed the execution and the envelope with the money in it to Sheriff Collier, who counted the ends of the money sticking out of the envelope to see that it was all right; that this was about a month before the November term of the circuit court, which was held on the fourth Monday of November of that year; that he next saw this envelope lying on the floor the morning after the county safe was robbed, with the end torn off. On cross-examination the witness said that he had memoranda at home, but not at court, which aided his memory as to dates. The execution bore date October 28th, 1867; but the witness testified that the date had been changed by erasure from September 7th or 27th, but could not say who made the change; did not think it was in his handwriting. Witness also testified that his indorsement on the execution, as above given, had likewise been changed, by drawing a pen through the words, “Of September, 1867,” and interlining the words, “And paid the same over to Sheriff Collier, as directed by defendant, this 28th October, 1867.” As changed, it read: “Received on the within execution $300 this 27th day, and paid the same over to Sheriff Collier, as directed by defendant, this 28th day of October, 1867.” Witness said that both the receipt and the changes and interlineations were in his handwriting, but he could not remember of making them, or the occasion of them; that the change in the date of the receipt corresponded with the change in the date of the execution. He was then shown certain entries in the execution docket of the Shelby circuit court, by which it appeared that the total costs indorsed on the execution were $14.90, that $300 was paid the clerk on the 27th of September, and that the execution was issued to the sheriff on the 27th of October, 1867. Witness said that these entries were in his handwriting, but he did not remember making them. He then stated that the changes in the entries on the execution were not in his handwriting, and he did not know in whose they were.

Plaintiff John Hendricks testified: About one month before the November term of the Shelby circuit court, in 1867, I went to Shelbyville to pay $300 on the Rowland judgment. I first offered the money to the sheriff, Collier. He said he had no execution against me, and refused to take it; said he would go and see the clerk. He came back in a few minutes, and said, “you must pay it to the clerk, and take his receipt.” I then went to the circuit clerk's office and paid over the $300 to Mr. Dobbin, who gave me a receipt for the same. Mr. Dobbin put the money in an envelope. The sheriff, Collier, came in about this time, and the clerk handed him the envelope containing the money, and also at the same time gave him an execution. I suppose it was an execution. It was some paper. Did not read it. Heard the clerk tell the sheriff that there was $300 to be applied on the Roland execution. The other payments indorsed on the execution, the $130 and the $25.56, were paid to Collier, by me in addition to the $300. They made the balance of the judgment after deducting the $300 paid to Dobbin. The consideration of the note now in controversy was the balance claimed by Smith to be due on the old Rowland judgment. This is how I came to give the note and deed of trust now in controversy: On the 24th day of January, 1875, the day they were executed by me and my son, Smith and one J. N. Brown came to my house, and Smith told me that the sheriff had agreed to meet him there; that the sheriff had an execution against me, issued in the case of Rowland against myself and others; that he owned and controlled the same, and that he would have my property levied upon if I did not pay off the execution or secure the same. He said if I would give him a note with security by deed of trust on my property, he would give me time to make the money out of Dobbin. He said that I could sue Dobbin, but he could not; and he would furnish and pay his own attorney to bring the suit for me, and it should not cost me a cent. I claimed that I had a right to a homestead in my land; but Mr. Brown said to me that I was not entitled to any homestead in the land; that a case of that kind had been before Judge Redd, and he had decided that a homestead could not be claimed in such a case. I also asked them time to consult a lawyer; but Smith said, No; if the matter is not arranged before the sheriff gets here, we shall seize your property. Brown then said he thought the best thing I could do was to give the note and deed of trust, and believing what they told me, and relying on their statements, we gave the note and deed of trust. Smith told me that Brown was his lawyer. At that time I lived on the real estate. My house was on the small tract, three acres and a fraction, which joined the eighty acre tract described in the petition. The mill property described in the deed of trust is not on the land upon which I lived at that time. The forty acre tract described in the deed is not adjoining the other land. My family consisted of myself, a son and two daughters; the son, being the youngest, is now eighteen years old. The land was worth from $1,000 to $1,200.

On cross-examination, the plaintiff, John Hendricks, testified: In 1873 a motion was filed in the circuit court of Shelby county, in the case of Rowland against myself and others, to expose my property to sale under the execution, the old original execution, read in evidence here in this cause, and testimony was taken on said motion in regard to the payment of the $300. I was present and resisted said motion, and heard Leonard Dobbin and Sheriff Collier both testify, and I also gave my evidence on the trial and hearing of said motion; Col. Thos. L. Anderson appeared as my attorney in said motion. I understood that that proceeding was abandoned, and the next I heard of the matter the defendant, Smith, had out a new execution against me. When I made the last payment of $25.56 on said execution, Sheriff Collier gave me a memorandum of all the payments I had made on said execution, including the $300 I paid to Dobbin as before stated.

Wm. P. Hendricks, one of plaintiffs, testified: I was present and heard what was said at the time the note and deed of trust was given. When Smith and Brown came, Smith asked if the sheriff had come. He said the sheriff had promised to meet him there that day at noon, to levy on property; but if father would give him a note and deed of trust,...