Henson v. Perry County Savings & Loan Ass'n

• Decision Date: 10 January 1928
• Docket Number: No. 19939.,19939.
• Citation: 300 S.W. 1037
• Court: Missouri Court of Appeals
• Parties: HENSON et ux. v. PERRY COUNTY SAVINGS & LOAN ASS'N.

300 S.W. 1037

HENSON et ux. v. PERRY COUNTY SAVINGS & LOAN ASS'N.

No. 19939.

St. Louis Court of Appeals, Missouri.

January 10, 1928.

Rehearing Denied January 24, 1928.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Suit by Tolbert Henson and wife against the Perry County Savings & Loan Association. Judgment for plaintiffs, and defendant appeals. Affirmed.

Robb & Robb and Samuel Bond, all of Perryville, for appellant.

P. B. Hood and Charles A. Killian, both of Perryville, for respondents.

BECKER, J.

Tolbert Henson and his wife, plaintiffs below, obtained a decree canceling a note secured by deed of trust on property owned by them, said note and deed of trust having been executed in the name of and delivered to the defendant association and duly recorded by it. The ground for such cancellation was that:

"Plaintiffs had received no value of any kind or amount from said note and deed of trust."

The defendant association appeals.

The chief assignment of error is that the finding of facts set forth in the judgment in many particulars are based upon mere assumptions and not founded on any evidence in the case.

This being an equitable proceeding, we necessarily review the entire record disregarding any admitted testimony which, in our view, is incompetent, and rendering such judgment as in equity and good conscience the pleadings and evidence may authorize. Canty v. Halpin, 294 Mo. 118, 242 S. W. 97; Jacks v. Link et al., 291 Mo. 282, 236 S. W. 10; Brightwell v. McAfee, 249 Mo. 562, 155 S. W. 820; Bryant v. Shinnabarger, 285 Mo. 484, 227 S. W. 54; McCormick v. Parsons, 195 Mo. loc. cit. 100, 92 S. W. 1162.

We have gone over the record carefully and upon the material and competent evidence in the case have come to the conclusion that, though in several particulars the finding of facts is not warranted, yet all necessary and essential facts prerequisite to the judgment rendered below are abundantly sustained by the evidence.

The record discloses a conflict of testimony on several points. A careful analysis of all of the evidence has brought us to the conclusion that the chancellor below, who had the advantage of seeing and hearing the witnesses, should be sustained in his finding of facts on the points in which the testimony adduced on behalf of the plaintiffs and that of the defendant is in direct conflict.

The uncontroverted facts are these: E. P. Kiesler was the secretary and treasurer of the Perry County Savings & Loan Association, and at the time in question was also cashier and managing officer of the Perry County Bank. Plaintiffs made application to the Savings & Loan Association for a loan of $1,300, which application was approved by its board of directors, and its secretary, Kiesler, authorized to complete the transaction, taking plaintiffs' note secured by deed of trust. On October 1, 1925, plaintiffs, at the request of said Kiesler, met at the office of tile attorney for the association, where they executed a note, dated October 1, 1925, for $1,300, payable to the defendant association and secured by deed of trust upon their property, which note and deed of trust were at that time delivered by plaintiffs to said Kiesler, secretary and treasurer of the defendant association, and the defendant association filed the deed of trust for record on January 11, 1926.

There was testimony adduced, which, if believed by the chancellor, supports a finding of facts as follows: On the 1st day of October, at the time plaintiffs delivered the note and deed of trust to Kiesler, he informed them that they should come to the Perry County Bank that afternoon and he would pay them the amount of the loan; that when plaintiff Tolbert Henson went to the bank, as requested, Kiesler told him that because a check in the sum of $700 had unexpectedly been drawn on the association, it, at that time, did not have sufficient funds to pay Henson the amount of the loan, but that as soon as the money was on hand he would pay Henson the money. On the 5th, and again on the...