Hulse v. Richard Wade Kelley Post, American Legion No. 380

• Decision Date: 17 December 1928
• Citation: 13 S.W.2d 555,223 Mo.App. 467
• Parties: MINNIE H. HULSE, ADMINISTRATRIX, RESPONDENT, v. RICHARD WADE KELLEY POST, ETC., ET AL., APPELLANTS. [*]
• Court: Kansas Court of Appeals

13 S.W.2d 555

223 Mo.App. 467

MINNIE H. HULSE, ADMINISTRATRIX, RESPONDENT, v. RICHARD WADE KELLEY POST, ETC., ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri, Kansas City

December 17, 1928

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

Judgment reversed and remanded.

E. C Hamilton for respondent.

Strother Campbell & Strother for appellants.

FRANK, C. Williams, C., concurs. Trimble, P. J., absent.

OPINION

FRANK, C.

This is a suit in equity asking that a deed of trust on certain lands securing a $ 6600 note, be declared a prior lien over another deed of trust on the same lands securing a $ 2000 note. The decree went in favor of plaintiff, and defendants appealed.

The facts are that defendant, Richard Wade Kelley Post, American Legion No. 380, which, for brevity, we will hereafter call Post, owned certain lands on which they desired to erect a Memorial Hall. Defendants, W. J. Frick, Archie M. Ehle and V. W. Perry were trustees of said Post, which was a voluntary unincorporated association. In order to raise money to build the hall, the trustees of the Post borrowed $ 5500 from Greenville Hulse, and, in their names as trustees, executed to said Hulse a note for that amount and secured it by a deed of trust on the property. After this $ 5500 deed of trust was recorded, more money was needed to complete the hall, and the trustees borrowed an additional $ 2000, for which they executed a note, payable to Katherine Frick, wife of W. J. Frick, one of the trustees, and secured it by a second deed of trust on the same property. Defendant, Frank M. Frick, is named as trustee in this deed of trust.

After the $ 2000 second deed of trust had been recorded, the trustees approached Greenville Hulse, the man who had made the first loan of $ 5500, for the purpose of borrowing an additional $ 1100 with which to discharge a mechanic's lien in that amount, which had been filed against the building. Hulse made the $ 1100 loan by adding that amount to his first loan of $ 5500. In order to make the loan in this manner, the trustees executed a new note and deed of trust for $ 6600, then Hulse released the $ 5500 deed of trust and recorded the deed of trust securing the $ 6600 note. After these transactions were had, the record showed the deed of trust securing the $ 2000 Frick note, prior in point of time to the one securing the $ 6600 Hulse note.

Later, Hulse died and plaintiff brings this suit as administratrix of his estate.

The evidence of plaintiff is to the effect that Hulse had been informed that the trustees of said Post had executed and delivered to defendant, Katherine Frick, a note for $ 2000, and a second deed of trust on the Post's property to secure the note, and he so informed the trustees when they applied to him for the additional $ 1100 loan, and refused to make the additional loan on that account. Thereupon two of the trustees, W. J. Frick and V. W. Perry, represented and stated to Hulse, that the second deed of trust securing the $ 2000 Frick note had not been recorded, and if he would increase his loan $ 1100 by releasing his $ 5500 first deed of trust, the trustees would execute a new note and deed of trust for $ 6600, and the new deed of trust, when recorded, would be a first lien on the property, because the second deed of trust securing the $ 2000 Frick note had not been recorded; that relying upon said representations and believing them to be true, Hulse was induced to and did make the additional $ 1100 loan by releasing his $ 5500 first deed of trust and accepting from said trustees a new note for $ 6600, secured by a deed of trust which was thereafter duly recorded; that Hulse would not have made said additional loan but for the fact that he mistakenly believed that the second deed of trust securing the $ 2000 Frick note had not been recorded.

Defendant, W. J. Frick, one of the trustees of the Post, testified that at the time the additional loan of $ 1100 was made, it was his intention that the $ 6600 deed of trust should be a first lien on the property. He also testified that when the second deed of trust securing the $ 2000 Frick note was executed, he did not have it recorded but left it with the bank; that the bank had it recorded and he did not know when it was done.

The first contention is that the return of service did not give the court jurisdiction over the Post, and as the Post did not answer, the court erred in rendering judgment against it.

The pleadings and evidence of both parties show that the only controversial point in the case was, which of two deeds of trust was entitled to priority. The controversy was between the owners of these two deeds of trust. In this situation, the Post was not an indispensable or necessary party to the determination of the controverted point. The Post is not here complaining, and it is not a necessary party to the complete determination of the rights of the parties hereto. In this state of the record, appellants are in no position to complain because judgment was rendered without its presence. This conclusion renders the determination of appellant's contention on this point unimportant.

Contention is also made that the $ 6600 note and deed of trust securing it are void because it was not shown that the trustees had authority to execute them on behalf of the Post. The uncontradicted evidence shows that the $ 2000 note, and the second deed of trust securing it, were executed by the same trustees and under the same authority which prompted the execution of the $ 6600 note and the deed of trust securing it.

If the $ 6600 note and deed of trust securing it are void for want of authority in the parties executing them, the $ 2000 note and deed of trust are void for the same reason. As both notes and deeds of trust depend...