Hendrix v. Goldman

• Decision Date: 10 March 1936
• Docket Number: 33513
• Citation: 92 S.W.2d 733
• Parties: HENDRIX v. GOLDMAN et al
• Court: Missouri Supreme Court

92 S.W.2d 733

HENDRIX v. GOLDMAN et al

No. 33513

Supreme Court of Missouri, First Division

March 10, 1936

Ardey Gabbert and Joseph Goldman, both of St. Joseph, for appellants.

Peter J. Carolus and Wm. J. Boyd, both of St. Joseph, for respondent.

OPINION

HYDE Commissioner.

This is an action in equity to set aside a deed of trust, conveying real estate in St. Joseph, to secure a $ 3,000 note. Plaintiff alleged that the deed 'was made, without any consideration, by agreement and conspiracy of defendants to cover and becloud said lands and to cheat and defraud plaintiff'; that its purpose was to defeat the collection of a judgment, obtained by plaintiff in her divorce suit against defendant Lande, for support and maintenance of their infant child; that plaintiff bad become the owner of the land by sheriff's deed, after levy and sale, under execution to enforce her judgment; that the deed of trust was a cloud on her title; and that defendant Goldman was threatening to foreclose it. The court found for plaintiff and canceled the trust deed. Defendants have appealed from this decree. Under the previous decisions of this court, the issues made by the pleadings involve title to real estate so that this court has jurisdiction of the appeal. Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318; Koewing v. Greene County Building & Loan Ass'n, 327 Mo. 680, 38 S.W.2d 40; Linneman v. Henrey 316 Mo. 674, 291 S.W. 109; Conrey v. Pratt, 248 Mo. 576, 154 S.W. 749.

It was admitted that plaintiff obtained judgment against Lande in May, 1926, that nothing had ever been paid thereon, and that on June 20, 1933, $ 850 was due. On that date plaintiff had an execution issued and thereafter purchased the property at the sheriff's sale. Defendants say in their brief that the sheriff's deed 'was void and without consideration,' and they argue here insufficiency of proceedings and inadequacy of the price under the bid at the sheriff's sale. No such question is presented on the record. Defendants' pleadings neither made a direct attack upon the validity of the deed nor asked for affirmative relief with regard to it. They stood on the proposition that plaintiff's title was subject to the trust deed. It does appear that defendants unsuccessfully attempted in the circuit court to quash the execution. The sheriff's deed was in evidence, and the regularity of the proceedings, upon which it is based, are now settled by the recitals of the sheriff's deed, which are conclusive here in the absence of any showing to the contrary. Sections 1211-1214, R.S.Mo.1929 (Mo.St.Ann §§ 1211-1214, pp. 1449, 1451, 1452); Williams v. Maxwell (Mo.Sup.) 82 S.W.2d 270. We must therefore consider that this established plaintiff's title to the land, subject only to the deed of trust, and that she had the right to have its validity against her title determined.

This land originally belonged to James Emial Lande, the father of defendant Lande. He died in August, 1932, leaving a will which gave all of his property to Lande, his only child, who was also appointed his executor. This will directed that Lande should retain Goldman as his attorney, 'to advise him and direct and assist him in the management of my estate, and not to sell, convey, or dispose of any of my real estate without his consent after my death, and in the settlement and distribution thereof, and to take the advice of said attorney in business and legal matters of my estate, during the time he shall manage same, or of his administration thereof.' Goldman had represented Lande as attorney in his divorce case and had also defended a suit for $ 25,000 for alienation of affections which had been commenced against his father and mother. Goldman represented Lande's father ever since he was practicing law and had written his will. Goldman testified that defendant Lande 'sent quite a few damage suits and called me and got a number of damage suits, * * * talked to the clients and told them to employ me and they sent for me and I got the cases.'

Lande made the $ 3,000 note and trust deed to Goldman on March 15, 1933. It conveyed all of the real estate Lande owned. At the same time Lande also executed a $ 500 note to Goldman secured by a chattel mortgage describing '3 counters, 1 cash register, 3 show cases, 1 ice box, stock of groceries and confectionery, 1 Pontiac Automobile, 1928 coupe, all shelving, all property in Kirschner's Addition, Buchanan County, Missouri.' This covered the stock and fixtures of a grocery store and meat market which came to Lande under his father's will and which was located on the land covered by the trust deed. Lande's father operated this store, and after his death Lande continued the business. He had previously been employed in packing plants as a cattle butcher. He also received after his father's death the proceeds of a $ 1,000.00 life insurance policy. He said that he used this to pay doctor's bills. The real estate was appraised in the inventory of the estate at $ 1,500; the personal property at $ 110.

Defendants explained the transaction of March 15, 1933, as having been made to settle debts due from both Lande and his father to Goldman. These items were claimed by Goldman, to wit:

Note of Lande's father and mother, signed also by Lande,

claimed to have been given for attorney

fee in alienation

of affections case. This note was produced, dated

March 17, 1921, and showed annual interest payments

indorsed on the back for each year up to and including

1930

$ 1,000.00

Account for cash claimed to have been advanced to

Lande's father. A book account showing items from

December 19, 1930, to March 4, 1931, and also checks

dated during that period were produced. One of these

checks was made to and indorsed by J.E. Lande,

the others James Lande

550.00

Attorney fee in defendant Lande's divorce case

150.00

Attorney fee in a partition suit for which defendant

Lande and another signed a note

100.00

Attorney fees in two divorce suits, in each of which it

was claimed that defendant Lande brought the plaintiffs

to Goldman and agreed to pay his fees, $ 100.00 in each

case

200.00

Attorney fee for services to defendant Lande as executor

of his father's estate

300.00

Items of cash claimed to have been loaned to defendant

Lande after his father's death and prior to the

execution of the trust deed

665.00

Defendant Goldman, after testifying to these items, said: 'The indebtedness amounted to more than three thousand dollars and there was a note and chattel mortgage on personal property executed on the same day.'The $ 1,000 note signed by all the Lande and the $ 100 note signed by defendant Lande and another were the only notes produced, although defendant Lande said that his father had signed a note for $ 500 (evidently he meant for the book account) and that he had signed a note for $ 150 for his divorce case attorney fee.Lande also testified: 'We wanted to settle up so he would not file in the Probate Court * * * I signed that for Mr. Goldman for $ 3,000.00 and picked up all of the rest of the notes and that was to take full account that he offered to settle * * * I signed it to Joe so he would hold back on the Probate Court. * * * I went and took all of the back notes up when I went and signed this $ 3,000.00 note * * * I told him, I said, 'I will give you $ 3,000.00 to settle these old debts' He told me, he says, 'Here are your notes. I will make this note $ 3,000.00 and we will call it even $ 3,000.00.' ' Defendant Lande had a book, which was offered in evidence by plaintiff, which he said he had carried 'several years to keep tab on things.'It was also used to compare signatures and handwriting with indorsements on checks produced by Goldman.Defendant Lande said that he 'did not even know about them checks,' and that his father 'would never tell me his business.'He further testified about the settlement as follows:

'Q. On March 15 you took them down home? A. No, I put them in the book, I might have made a mistake.

'Q. And put them down twice? A. I might have done it. I don't know. I might have been lit up * * *

'Q. Might have been what? A. I might have been feeling good * * *

'Q. And that might have been your fix that day, March 15? A. Oh I...