Kelsay v. Kelly

• Decision Date: 11 January 1926
• Docket Number: No. 15505.,15505.
• Citation: 278 S.W. 791
• Parties: KELSAY v. KELLY et al.
• Court: Missouri Court of Appeals

278 S.W. 791

KELSAY v. KELLY et al.

No. 15505.

Kansas City Court of Appeals. Missouri.

January 11, 1926.

Appeal from Circuit Court, Moniteau County; Henry J. Westhues, Judge.

"Not to be officially published."

Suit by William Kelsay against L. R. Kelly and another. Decree for defendants, and plaintiff appeals. Affirmed.

Embry & Embry and S. C. Gill, all of California, Mo., for appellant.

D. W. Peters, of Jefferson City, and Roy L. Kay, of California, Mo., for respondents.

BLAND, J.

This is a suit in equity seeking to have set aside on the ground of fraud a release of a deed of trust and to have the deed restored and declared a first lien upon the land. The chancellor rendered a decree in favor of defendants, and plaintiff has appealed.

Plaintiff testified that in the month of August, 1923, he, the defendant L. R. Kelly, and Kelly's brother-in-law, Les Harmon, and one James Cartner, went from Moniteau county, their home, to Jefferson City in said defendant's car; that they all imbibed freely of alcoholic liquors; and that plaintiff, at least, became intoxicated. They returned early the next morning, arriving at the house of Kelly about 1 o'clock, where he and Kelly retired. Upon arising plaintiff found that one of his pants pockets in which he carried his purse containing about $10.50 in money had been cut and his purse and money were missing. He awoke Kelly and told him of his loss, and the two went out to the car and searched it, but failed to find either the money or the purse. On August 27, 1923, Kelly went to see plaintiff at his home and claimed that plaintiff had slandered him and Harmon a day or two before at a sale. The slander was concerning the loss of plaintiff's purse and money. Plaintiff testified that Kelly told him that "he was going to turn me in for slander for $5,000." Plaintiff owned a note in the sum of $1,200, secured by a deed of trust on Kelly's land, which was executed by Kelly and his wife, Beulah. Kelly told plaintiff that unless he released the deed, he would "turn him in for slander," and if he would release it, "I'll make it back to you in a few days." "You work hard for your money and I don't want to take it away from you." He told plaintiff that he did not want Harmon "to know it." He was asked at the trial if Kelly told him why he wanted the deed released, and he replied "something in regard to Harmon some way." Afterwards he met Harmon at Kelly's house. He was asked:

"Q. Did I understand you to say that Kelly told you he was going to sue you for $5,000? A. Yes; that was what they claimed."

He stated that both of them told him that he would be sued for $5,000, but he did not know which one was going to bring the suit, "both of them, I reckon"; that he released the deed of trust in order to keep from being sued for $5,000. Afterwards he stated that—

"I don't know as I would have done it (release the deed) if it hadn't been for that. He told me that he would make it back to me."

They then went to Kelly's home, where plaintiff found Harmon. Harmon told him in the presence of Kelly that they were getting ready to go to town and wanted plaintiff to give him $4,000; "he claimed that he would turn me in for slander if I didn't, both of them." Plaintiff told him, "I would do it, I guess." He and Harmon then went to the house where plaintiff resided and procured the note and returned to Kelly's house, and the three of them then went to California, where the deed of trust was released and plaintiff paid Harmon $400. Plaintiff waited a few days, when he reminded Kelly of his promise to give him a new note and deed of trust, and Kelly said that he would not make it because "his wife was pretty sore." Plaintiff testified "he would not do it, so I came to town and turned him in on it." He stated that what he meant by "turned him in" was that he came to town to see some lawyers in reference to it. He further testified that after suit was brought he had Kelly arrested on a whisky charge.

Kelly's version of the trip to Jefferson City was substantially the same as that of plaintiff. He testified that "we drank enough to be lit"; that the next morning when plaintiff told him about his pocket being cut and his money gone, they went out to the car and found 20 cents in it; that plaintiff left before breakfast although invited by Kelly to stay. Thereafter Kelly heard that plaintiff had accused him of stealing the money, and he started to plaintiff's place of residence to see him about it and met him on the way. Plaintiff denied making any statement accusing Kelly of taking the money. Kelly said to him, "Uncle Bill, I can prove it on you." "Then he tried to square around out of it, and then I told him what I was going to do, that I was going to sue him for $5,000 damages for slander." Plaintiff wanted to go over and see Harmon and see what Harmon wanted. Kelly told him that "I can't speak for anybody but myself."

They then went to Kelly's house, and plaintiff and Harmon talked outside while Kelly went into the house and paid no attention to the conversation. Kelly and plaintiff talked the whole thing over at Kelly's house, and it was agreed that if plaintiff would release the mortgage securing the note, Kelly would not sue him for damages. Harmon then took Kelly's car, and he and plaintiff went to plaintiff's residence and procured the note, and when they returned the three went to California, where the deed was released. Kelly and his wife subsequently, on August 29, 1923, placed a new deed of trust in favor of one Tising on the property securing the note of $1,068. Kelly denied that he had agreed to give plaintiff a new deed or that plaintiff had ever requested one. Harmon did not testify. The evidence is overwhelming that plaintiff, after the trip to Jefferson City, stated in the presence of a number of witnesses at a public sale that Harmon...