Hudler v. Guerdan

• Decision Date: 01 March 1938
• Docket Number: No. 24254.,24254.
• Citation: 113 S.W.2d 1039
• Parties: HUDLER v. GUERDAN et al.
• Court: Missouri Court of Appeals

113 S.W.2d 1039

HUDLER v. GUERDAN et al.

No. 24254.

St. Louis Court of Appeals. Missouri.

March 1, 1938.

Appeal from St. Louis Circuit Court, Division No. 13; John W. Joynt, Judge.

"Not to be published in State Reports."

Suit in equity by Edna Hudler against Lee W. Guerdan and others for the amount of four notes secured by trust deed, foreclosure of defendants' equity of redemption and interests in mortgaged lot, and sale thereof to discharge debt due plaintiff. Judgment for defendants, and plaintiff appeals.

Affirmed.

Hugh D. McCorkle, of St. Louis, for appellant.

Adolph Kirchner, of St. Louis, for respondents.

HOSTETTER, Presiding Judge.

This is a suit in equity begun in the circuit court of the city of St. Louis on September 29, 1933.

This suit had its genesis in a sale and conveyance of lot No. 29 of city block 5671 in said city, by Russell C. Hudler to E. N. and Surrilda Reedy, two of the defendants, and in the giving of a deed of trust by the latter to said grantor to secure the payment of the remainder of the purchase price of $490, evidenced by forty-nine promissory notes of $10 each, all dated March 1, 1922, and due in a series of from one to forty-nine months after date, bearing interest at the rate of 6 per cent. per annum.

This controversy concerns only four of these forty-nine notes, to wit, notes 1, 23, 48, and 49, all the rest of the series concededly having been paid and released of record.

The amended petition, on which the case was tried, after setting out the above-mentioned facts, set out that the Reedys sold and conveyed the lot so that by mesne conveyances the title is now vested in defendants Lee W. Guerdan and Helen Guerdan; that defendant Louis Bosso, a one time owner, is a warrantor of the title to the equity of redemption; that defendant Conservative Building & Loan Association holds a deed of trust against the property, which is subsequent and junior to plaintiff's deed of trust; that Russell C. Hudler was, and continued to be, the owner of said four notes until the ______ day of July, 1933, at which time he indorsed and delivered the same to plaintiff; and that she is now the owner and holder of said unpaid notes.

The prayer of the petition asked for judgment on the four notes and interest, and that the equity of redemption and interests of all the defendants be foreclosed and sold to discharge the debt due plaintiff.

No personal service was obtained on the Reedys, but an order of publication, based on their alleged nonresidence, was made and proof of publication was filed.

The answer of defendant Conservative Building & Loan Association contained a general denial, an admission of its corporate existence, and averments that at the time it acquired its deed of trust lien on said property the deed of trust, under which plaintiff claims, was duly released of record in the recorder's office of St. Louis city on or about September 22, 1926, and that any title claimed to have been acquired by plaintiff was acquired long after the deed of trust under which she claims had been duly released of record and that she took said four notes with notice of such facts and is not entitled to the relief claimed; that at the time the deed of trust was acquired by this defendant it had no notice or knowledge of any claim on the title by plaintiff or any one else.

The answer of defendant Bosso contained allegations similar to those contained in the answer of the Conservative Building & Loan Company, and, in addition thereto, set up that note No. 1 was barred by the statute of limitations at the time plaintiff claimed to have acquired it.

The answer of the defendants Lee W. Guerdan and Helen Guerdan contained a general denial, and an admission of their acquisition of the title to the lot in controversy, and, in addition thereto, contained similar allegations to those contained in the answer of defendant Bosso.

The reply to the several answers was that the release was wrongfully and illegally made by means of a false affidavit, and that nonresidence of the Reedys prevented the statute of limitations barring note No. 1, and that lack of knowledge or notice of any claim under the Reedy deed of trust is immaterial.

R. C. Hudler was the only witness called on behalf of the plaintiff, Edna Hudler, his sister, who did not take the witness stand, and, so far as the record shows, was not present at the trial.

At the conclusion of the testimony given on behalf of the plaintiff, the defendants offered an instruction in the nature of a demurrer to the evidence, which the court refused. The offering of this instruction was improper, as it was the duty and the province of the chancellor to hear all of the testimony, in any event.

At the conclusion of all the testimony the court found the issues in favor of the defendants, and rendered judgment against the plaintiff, from which judgment the plaintiff, after an ineffective motion for a new trial, duly perfected her appeal to this court. The trial court did not disclose its reasons for reaching its conclusion.

Inasmuch as this is an equity case, we, as a reviewing court, are required to examine all the testimony to determine whether the evidence supports the conclusion reached by the chancellor, and, in so doing, we are required to use due deference to the finding below because of his superior vantage ground in seeing and hearing the witnesses while giving their testimony.

The lack of a written memorandum of the reasons which influenced the chancellor to find against the plaintiff and in favor of the defendants imposes on us the duty to analyze all the testimony, in order to determine on what probable ground the chancellor reached this conclusion, and to determine whether there was sufficient testimony adduced, which, being believed by the trial judge, would support the conclusion reached.

There is not much dispute about the law which is applicable to a case of this character. The weight of authority seems to be well settled to this effect: that the rights of an owner of notes secured by a deed of trust cannot be affected by an unauthorized or false release made on the records; that his lien will be protected and held good as against parties thereafter acquiring interests in, or liens on, the property, who innocently rely on the genuineness of the release, provided he...