Homan v. Dewey
| Decision Date | 17 August 1938 |
| Docket Number | 34881 |
| Citation | 119 S.W.2d 345 |
| Parties | HOMAN et ux. v. DEWEY et al |
| Court | Missouri Supreme Court |
Randolph & Randolph, of St. Joseph, for appellant.
Richard W. Mason and Sherman & Sherman, all of St. Joseph for respondent Wheat.
Utz & Utz, of St. Joseph, for respondents Homan.
BOHLING, Commissioner.
Action to quiet and determine title to certain real estate in Buchanan county, Missouri. The trial involved two deeds of trust on real estate of O. G. Homan and Dollie Homan, husband and wife, and their notes secured by said respective deeds of trust.
Joseph L. Hager, a defendant and an active figure in the transactions involved, was Vice-president of the H. S. Smith Investment Company, and Assistant secretary of the Provident Building and Loan Association, which companies, from the record, maintained joint offices. The papers in each transaction appear to have been made out at his office and under his supervision.
The first deed of trust was dated April 28, 1928, was duly recorded May 24, 1928, and secured an indebtedness (part purchase money) of $ 2000, payable $ 35 monthly to Wm. H. Gray and Lillian Florence Gray, husband and wife, with interest from date at six per cent per annum. The Homans made payments to Mr. or Mrs. Gray. These payments ceased in November, 1932, when the Homans experienced financial difficulties, and the balance due at the time of trial was approximately $ 750. Floyd A. Wheat, Administrator of the estate of Lillian Florence Gray, deceased, has been substituted as a party respondent, Mrs. Gray having died September 28, 1936, pending the appeal. Mr. Gray died June 13, 1930, prior to the institution of suit. Further detailing the testimony to cover the issues nisi with reference to said note and deed of trust is not essential to this review as no contested issue involving said papers is here presented for determination.
For the purpose of securing money to pay the balance due on the Gray note and accrued unpaid taxes, the Homans, negotiating with Hager (who did not represent Mrs. Gray) and under his supervision, on February 9, 1934, executed a series of notes evidencing an aggregate indebtedness of $ 1000 (5 notes were for $ 50 each, due consecutively every six months on August 9th and February 9th of each year until due date of the last note, and one note for $ 750 due February 9, 1937). Each note was payable to M. C. Edson or order, at the office of the Smith company, with six per cent interest from date, payable semiannually, and all were secured by the Homans' deed of trust on the real estate in question for the benefit of said Edson. Mr. Edson was a clerk in the office of the Smith and Provident companies, had no interest in said papers and, endorsing the notes without recourse, delivered the papers to Mr. Hager. Said deed of trust was recorded January 8, 1935.
Mr. Hager delivered said notes and deed of trust dated February 9, 1934, to George Dewey, appellant. Neither the Homans nor any person on their behalf ever received any consideration for said papers and, under the record, no party other than appellant ever asserted any right, title or interest therein adverse to the Homans.
The court decreed title in the Homans subject to the indebtedness remaining due on the note secured by the first deed of trust, and ordered the notes of February 9, 1934, and deed of trust securing the same cancelled.
George Dewey states the case revolves around whether or not he is an innocent holder for value of the papers dated February 9 1934. Dewey and Hager are brothers-in-law. Dewey resided in Kansas City, Missouri, and since 1919 had been engaged in the real estate business. He testified he made many loans for clients, tried to be careful in handling business and always had the abstract of title brought down to date to protect purchasers of secured notes; that his wife wanted him to buy a first mortgage from Hager -- but later that building and loan associations could not sell their first mortgage notes; that Hager was at his home sometime in September, 1933, and he gave Hager $ 1000 in cash to buy a first mortgage; that he did not take a receipt from Hager, but later that he had a receipt, dated September 8, 1933, for the money; that he acquired said notes the following Christmas but later that Hager first delivered another note to him, which, after holding for three to five months, he returned to Hager; that he did not know whether Hager collected said note; that Hager delivered the Homan notes and deed of trust of February 9, 1934, to him about Christmas, 1934; that when he received them, the deed of trust had been recorded, and he knew the interest was past due on all the notes and the principal was past due on two of the $ 50 notes; that, later, he might have received...
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