Henry v. Bank of Wentworth
| Decision Date | 04 March 1924 |
| Docket Number | 23632 |
| Parties | ODESSA LEE HENRY and O. B. HENRY v. BANK OF WENTWORTH, C. W. MOODY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court; Hon. Joseph D. Perkins Judge.
Affirmed.
W R. Robertson and Grover C. James for appellants.
(1) Plaintiffs having conveyed their entire interest in the real estate and having fully protected themselves against any liability for the deed of trust which they seek to cancel have neither legal nor beneficial interest in the suit and have no right to maintain same. 21 C. J. 264; 266; Dameron v. Jameson, 71 Mo. 97, 100; Truman v. Chilton, 197 S.W. 346. (2) The plaintiffs having executed and delivered to defendant Obert the warranty deed conveying the real estate in controversy with general covenants of warranty except as to the deed of trust which the plaintiffs seek to cancel, and the defendant Obert having accepted said deed containing such provisions, both the grantor and grantee being able to read and write and having full opportunity to read such instrument before signing or accepting same, neither party should be heard to say that the writing does not contain the agreement stated therein. Cross v. Longsdon, 239 S.W. 1087, 1089; Cantwell v. Johnson, 236 Mo. 575, 600. (3) The proof to justify the relief sought must be so clear, convincing and complete as to exclude any reasonable doubt in the minds of the court. Bross v. Rogers, 187 S.W. 39. (4) In a suit to cancel a note and a deed of trust securing it, while great deference is given to findings of the trial court, responsibility of finding the facts rests on the appellate court. Whiles v. Graves, 252 S.W. 943. (5) The findings and judgment of the court are against the weight of the evidence and for the wrong party. (6) By reason of defendant Obert's inconsistent positions and his failure to avail himself of the information readily open to him, he is not entitled to any relief in a court of equity. Einstein v. Strother, 182 S.W. 123; Cantwell v. Johnson, 236 Mo. 575.
W. R. Shuck and George V. Farris for respondents.
(1) The subject-matter of this litigation is the cancellation of the note and mortgage described in the petition of plaintiffs, and although plaintiffs have sold the land, their interest in having the record cleared is sufficient to enable them to maintain this suit. Kersten v. Coleman, 144 P. 1092; 21 C. J. 267. (2) In an equity case, of course the rule is well settled that the appellate court will weigh the evidence and reach its own conclusions as to whether it is of sufficient probative force to sustain the findings. But if the substantial weight of the evidence sustains the findings the appellate court will not interfere. Daudt v. Steiert, 205 S.W. 222.
Action to cancel note and deed of trust securing same; begun November 30, 1920, in McDonald County, tried on change of venue in Jasper County.
The deed of trust sought to be canceled was executed in 1914 by Laura B. Griffin and S. H. Griffin, conveying to G. W. Smith, trustee, a tract of land in McDonald County, to secure a note to Mary H. Reed, for $ 1200, payable October 1, 1919. The note bears interest at six per cent per annum, and sometimes is mentioned in the record as the Reed note, and sometimes as the Griffin note. It was afterwards taken up and held by the Bank of Wentworth, of which C. W. Moody was cashier.
On April 14, 1919, the Griffins, by general warranty deed, conveyed the land, "subject to trust deed for $ 1200," to the plaintiff Odessa Lee Henry, wife of O. B. Henry.
On April 24, 1920, Odessa Lee Henry and O. B. Henry, conveyed the land to Albert Obert, defendant, with covenants of general warranty, "except one certain mortgage deed in the sum of $ 1200 due to G. W. Smith, trustee for Mary H. Reed."
The plaintiffs, claiming the note was paid, bring this suit as warrantors of the title which they conveyed to Obert, making their grantees and the trustee in the deed of trust and the present holder of the note, parties to the action.
On October 6, 1919, six months before the Henrys conveyed the land to Obert, a second deed of trust securing a note for $ 1200 was executed by Odessa Lee Henry and O. B. Henry, securing to the Bank of Wentworth the sum of $ 1200. So when the Henrys conveyed the land to Obert it was encumbered by the two deeds of trust, each of which secured $ 1200, and both of which were afterwards held by the Bank of Wentworth. The warranty, it will be noticed, excludes only one of the mortgages from its operation, so that the Henrys were liable upon their warranty on account of one of the $ 1200 mortgages.
The petition sets out these different conveyances and alleges that in October, 1919, the plaintiffs were living in Oklahoma; that the Reed mortgage then was held by the Bank of Sarcoxie, having been assigned to it by Mary H. Reed; that the Reed note being past due, October 10, 1919, the Bank of Wentworth and its cashier, Moody, sent by mail to plaintiffs a note and deed of trust for $ 1200, dated October 7, 1919, requesting plaintiffs to execute and acknowledge the same and return it to the bank; that the bank and C. W. Moody would thereupon cause to be released of record the Reed deed of trust which the Bank of Wentworth then owned, having taken up and received it from the Bank of Sarcoxie. That the plaintiffs executed said note and deed of trust and returned same to the Bank of Wentworth and to C. W. Moody upon the express understanding and agreement that the bank and Moody would satisfy the record as to the Reed deed of trust. It is further alleged that the bank and Moody wrongfully refused to satisfy the record and to have the deed of trust and note canceled, retaining the same wrongfully, so that there were then outstanding against the said property the two deeds of trust, each securing a note for $ 1200.
The petition further states that, believing there was only one deed of trust for $ 1200 against the property, on April 24, 1920, by warranty deed plaintiffs conveyed the land to the defendants Obert, and that the scrivener in writing said deed from plaintiffs to Obert made a mistake and described the Reed deed of trust instead of the last mentioned deed of trust executed by plaintiffs, and that it was the intention of plaintiffs to warrant said title except as to the last instead of as to the first deed of trust. That the Oberts thereafter paid the last mentioned deed of trust and then discovered the existence of the other one, and caused plaintiffs to be arrested, in a proceeding which was still pending in the Circuit Court of McDonald County. The plaintiff, therefore, prayed that the first deed of trust above mentioned be canceled.
It was further alleged that the Bank of Wentworth and said Moody threatened to foreclose the first deed of trust, which they wrongfully and fraudulently held and retained as aforesaid, and the petition prayed that they be restrained from such foreclosure and that the said deed of trust be canceled.
The Bank of Wentworth answered admitting the execution of the several deeds of trust, and alleged that at the time of the execution of the second deed of trust, and long prior thereto, the plaintiffs Henry owed the bank a personal unsecured note amounting to $ 1150; that in October, 1919, when the bank was pressing the plaintiffs for payment, they "requested of this defendant that it purchase from the said Bank of Sarcoxie the said note secured by the Griffin deed of trust and agreed with this defendant if it would so purchase said note that said plaintiffs would execute and deliver to this plaintiff a second deed of trust upon said land for $ 1200, which is the second deed of trust referred to in the plaintiffs' said amended petition, and would also permit the said defendant to hold the said Griffin deed of trust and the note secured thereby as collateral security for the said note of $ 1150 executed by plaintiffs and held by this defendant; and agreeing thereto and acting in pursuance of said request this defendant did purchase the said note so held by the Bank of Sarcoxie, paying the full face value therefor, and the said plaintiffs did in pursuance to said agreement execute the said second deed of trust and this defendant did extend the time of payment of said $ 1150 note executed to it by plaintiffs and now holds the same, no part of which has been paid except the interest up to September 9, 1920."
The answer then tendered the Griffin deed of trust and note on condition that the plaintiffs pay the note for $ 1150.
Moody filed for separate answer a general denial. The Oberts filed a separate answer admitting the facts alleged in plaintiff's petition and prayed for judgment against the plaintiffs for $ 1200 and interest, if the court should find the facts and allegations of the petition to be untrue.
From what has been said it will be seen that the issues are:
(a) Whether the second deed of trust executed by plaintiffs was intended to re-place and cause cancellation of the first deed of trust, as the plaintiffs claim; or,
(b) Whether there was an agreement between the plaintiffs and Moody, representing the Bank of Wentworth, that the first deed of trust should be retained as collateral to the unsecured note of $ 1150, which the plaintiffs owed the bank.
(c) Defendants make the point that the plaintiffs, having conveyed the land, expressly excluding from the effect of their warranty the deed of trust sought to be canceled, had no right to sue, having no interest in the subject-matter of the suit.
Since the chancellor found the facts in favor of the plaintiffs and we must pass upon the facts, we will set out at some length the evidence bearing upon these several propositions.
The plaintiff, O....
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