Hughes v. Menefee

• Citation: 29 Mo.App. 192
• Parties: J. S. HUGHES et al., Respondents, v. B. J. MENEFEE et al., Administrators, etc., Appellants.
• Decision Date: 06 February 1888
• Court: Kansas Court of Appeals

29 Mo.App. 192

J. S. HUGHES et al., Respondents, v. B. J. MENEFEE et al., Administrators, etc., Appellants.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Ray Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and bill dismissed.

The case and facts, as set up in the petition, are stated in the opinion of the court.

J. L FARRIS and LAVELOCK & LAVELOCK, for the appellants.

I. The appellants insist that respondents' bill should have been dismissed and assign the following errors of the trial court as grounds for reversal. It was immaterial whether the suit was in the name of the private company or the corporation, so far as the testimony of George A. Hughes was concerned. He was one of the parties with whom the contract was made, and on the institution of the suit, and at the time of the trial he was interested in the subject-matter involved, and was claiming a benefit under the alleged contract. He was therefore, clearly incompetent as a witness, A. P. Moore being dead. 1 Greenl. Evid. [13 Ed.] sec. 333; Butts v Phelps, 79 Mo. 302; Meier v. Thiemann, 90 Mo. 433; Meier v. Thieman, 25 Mo.App. 306.

II. The motion to dismiss, filed by appellants during the trial, should have been sustained, as the evidence showed J. S. Hughes & Company were not the real parties in interest. Rev. Stat., sec. 3462; Williams v. Whitlock, 14 Mo. 560.

III. The petition filed by the banking house of J. S. Hughes & Company, was an abandonment of the original suit, and the institution of another by an entirely different party. This proceeding was unauthorized.

IV. The petition does not state facts sufficient to entitle respondents to equitable relief. (a ) A parol agreement to make a mortgage will not give any title or lien in equity. 4 Kent's Com. [12 Ed.] 151. (b ) A court of equity cannot dispense with regulations prescribed by statute, and permit that which the statute requires shall be in writing, acknowledged, and recorded, to be shown by parol, for such a doctrine would defeat the policy of legislative enactments. 1 Story's Eq. Jur. [12 Ed.] secs. 96, 170, 177; Houx v. County of Bates, 61 Mo. 393-4; Long v. Hewett, 44 Iowa 363. (c ) The respondents had no mortgage; they never were in possession of the property claimed; and their action cannot be sustained against the administrators and creditors of the Moore estate. Rev. Stat., sec. 2503; Frame v. Thomas, 86 Mo. 80; Moser v. Claes, 23 Mo.App. 420. (d ) The creditors contesting respondents' claim, appeared by their attorney, besides, " the administrators are deemed full representatives of creditors of estates committed to their care." Kennerly v. Shepley, 15 Mo. 640. ( e ) The demands of respondents had been allowed, classified, and payments made thereon, and a court of equity could not disregard such classification. Titterington v. Hooker, 58 Mo. 596.

V. The decree is not responsive to the issues made by the pleadings. The petition did not seek to reach anything but the proceeds from the sale of stock on which plaintiffs claimed to have a lien. The general prayer only entitled plaintiffs to relief consistent with their petition. Wilkins v. Wilkins, 1 Johns. Ch. 111; McNair v. Biddle, 8 Mo. 257; Newham v. Kenton, 70 Mo. 382; Muenks v. Bunch, 90 Mo. 500.

VI. There was no demand made for the property. The probate court declined to order the proceeds paid to plaintiff. The administrators could not be expected to turn over this money without any protection whatever. The respondents stood by, with the full knowledge of all that was done, without taking a single step to reach the property or the proceeds, except to present their claims to the probate court. Was this no waiver?

VII. The lips of Moore have been sealed by death. There was no evidence of the agreement except that of interested parties, which defendants claim to be incompetent. The claim being based on a mortgage, which neither existed in fact or in law, nor in equity, the approval of the decree rendered would be clearly unjust to other creditors of the Moore estate.

C. T. GARNER & SON, for the respondents.

I. The allowance of the claim in the probate court was a proceeding at law, purely and wholly statutory, cumulative in its character, and intended to reach other assets of the estate, or its pro-rata share, according to the classification, and did not in any manner affect the remedy of respondents to proceed in equity, to enforce their equitable right and lien upon and against specific property as securities for the payment of a specific indebtedness. The probate court had no equitable jurisdiction, was without authority or power to enforce an equitable lien, and any order made by it would have been a nullity, and so the probate court held and believed the claims were allowed in the ordinary form, and respondents left to their remedial suit in equity to enforce the contract and lien. Respondents are not precluded from maintaining this suit, or in any manner affected by said allowance; the proposition is too plain to admit of argument, is not debatable, and does not require the production of authority. A party may bring the suit in law and fail, and yet recover in equity. These are principles imbedded in equity and honored for their age.

II. This is not a contest between creditors or strangers, but a suit and proceeding in equity to enforce a contract and lien between the parties thereto, founded upon a valuable and bona-fide consideration, paid and received. The deceased Moore was a party to the contract and lien. The appellants are his administrators, occupy his identical position, and are bound by his promises and contract. It was the duty of the administrators, the appellants, upon being notified and obtaining knowledge of the contract and lien, to discharge said lien and trust, or preserve the property or proceeds thereof, for the moment they were so notified (having converted the property into money) of the contract and lien they became trustees of the respondents, who were entitled to the money. The proceeds of the sale of said stock and corn became in their hands a trust fund for those who were entitled to it. 2 Story's Equity, secs. 1255, 1258, 1260.

III. At common law a valid mortgage of personalty may be made without writing. This results from the established principle that, at common law, a valid sale or transfer of personal property need not be in writing. Jones on Chattel Mortgages, p. 2, sec. 2; Morrow v. Turner, 35 Alabama; Bank v. Jones, 4 N.Y. 499; Jones on Chattel Mortgages, sec. 69. A parol agreement to give a mortgage, upon which money has been advanced, may be enforced in equity between the parties and their representatives. Jones on Chat. Mort., secs. 163, 171; Conchman v. Wright, 1 Neb. 1; Glover v. McGilvey, 63 Ala. 508. Delivery is not indispensable between the parties, under a verbal mortgage, any more than under a formal mortgage in writing. Jones on Chat. Mort. [2 Ed.] 3; Morrow v. Turner, 35 Ala. 131.

IV. In equity while a mortgage may not pass the title to the property, it creates in the mortgagee an equitable interest in and lien on the property which can be enforced in equity. The grounds of the doctrine as to after-acquired property is, that although inoperative as a conveyance, it is operative as an executory contract or agreement which attaches to the property when acquired, and equity transfers the beneficial interest to the mortgagee, the mortgageor being regarded as a trustee for the mortgagee, in accordance with the familiar maxim in equity, that " equity considers that done which ought to be done." Thompson v. Hoerstel, 10 Mo.App. 290; Wright v. Bircher, 72 Mo. 179; Page v. Gardner, 20 Mo. 509; Brown v. Thompson, 59 Me. 372; Jones on Chat. Mort., sec. 170, p. 170. If the appellants, as administrators, mixed, confused, and intermingled the property mortgaged, or upon which respondents had a lien, or the money proceeds thereof, with the other money and assets of the estate so as to destroy its identity, and so that it cannot be distinguished from other money and assets of said estate, the respondents are not to suffer thereby, but may proceed against the whole assets in the hands of the appellants as such administrators. Jones on Chat. Mort. [2 Ed.] sec. 481; Fuller v. Page, 26 Ill.; Simmons v. Jenkins, 76 Ill. 479.

V. The doctrine of equitable mortgages or liens, arising from agreements or implied from a deposit of title papers, is one of the creations of courts of equity. And the established doctrine is, that an agreement for a mortgage has, in equity a specific lien, and that the mortgagees are entitled to a preference and priority over other creditors who have no lien. 32 Cal. 375; 1 Hill on Mortgages, 648; McQuee v. Peay, 58 Mo. 58; Adams Equity, p. 123, and note. The doctrine has long been settled that in addition to the actual conditional conveyance of land which constitutes a legal mortgage, courts of equity recognize and enforce other liens arising from the implied agreement of the parties, or the justice of the case. These are termed equitable mortgages or liens, and are based on agreements to give a mortgage, or an imperfect attempt to create a mortgage, or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien on property. 1 Hill. on Mortgages, [4 Ed.] 468; Raccouillett v. Sausevin, 32 Cal. 375; McQuee v. Peay, 58 Mo. 58. The Supreme Court of Missouri, in the case of McClurg v. Phillips, 49 Mo. 315, held, in relation to real estate, that a mortgage, irregularly and incompletely executed on account of the omission of material requisites necessary to a good legal instrument, created an equitable mortgage or lien in equity for the benefit of the creditor, and maintained the...