Kilkenny v. Kilkenny
| Citation | 279 S.W. 184,220 Mo.App. 535 |
| Parties | FRANK H. KILKENNY, APPELLANT, v. LILLIE MAY KILKENNY, RESPONDENT. |
| Decision Date | 05 January 1926 |
| Court | Court of Appeal of Missouri (US) |
Reporter's Note: Certiorari issued in the above cause by the Supreme Court, on hearing, was quashed, December 31 1926. See 289 S.W. 550.
Appeal from the Circuit Court of Lewis County.--Hon. James A Cooley, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Hilbert & Henderson and H. S. Rouse, for appellant.
(1) The court erred in dismissing plaintiff's bill, because defendant although duly served with summons more than thirty days before the first day of the March term, 1924, of the court, defaulted and failed to file an answer to the third count of plaintiff's bill, Sec. 1184, R. S. 1919. (2) The court erred in failing to award judgment to plaintiff, because plaintiff was a stranger to said note and when he, with his own money, took up said note, the legal presumption is that it was a purchase and not a payment. Campbell v. Allen, 38 Mo.App. 27; Marshall v. Meyers, 96 Mo.App. 647; Belle Telephone Co. v. Estate of T. J. Hamil, 153 Mo.App. 406; Allen v. Dermott, 80 Mo. 56; Prather v. Hairgrove, 214 Mo. 161; Cantrell v. Davidson, 180 Mo.App. 420; Wing v. Insurance Co., 181 Mo.App. 390; Lipscomb v. Talbot, 243 Mo. 34. It is only when a person is primarily bound by contract to pay a note that his payment of it works an extinguishment and satisfaction of the obligation, and then only as to those to whom he is bound. Allen v. Dermoot, 80 Mo. 59. It was not necessary that Cleopatria F. Waggoner, the holder, understand or know that plaintiff was purchasing said note. Prather v. Hairgrove, 214 Mo. 142. It was not necessary that said note have a written indorsement thereon. Cantrell v. Davidson, 180 Mo.App. 418; Sec. 835, R. S. 1919. The mortgage was an incident of the note and followed it. Lipscomb v. Talbot, 243 Mo. 31. (3) The acknowledgment of satisfaction of the deed of trust possessed no more sanctity, nor conclusive force than a receipt for the money, which is always, both at law and equity, open to explanation. And it is competent to show by parol that such acknowledgment of satisfaction was made through a mistake. Christy v. Scott, 31 Mo.App. 337. (4) When plaintiff furnished the money to pay off the mortgage James Kilkenny was bound to pay, and at the request of said James, he was not a volunteer, and was entitled to be subrogated under the deed of trust so paid off and released. Capen v. Garrison, 193 Mo. 343; Implement Co. v. Jones, 143 Mo. 280; Brown v. Bank, 66 Mo.App. 431; Johnson v. Goldsby, 32 Mo.App. 564; Wolff v. Walter et al., 56 Mo. 295; Norton v. Highleyman, 88 Mo. 624. (5) A suit in equity is the proper procedure to set aside the satisfaction and cancellation of a deed of trust. Sweet v. Leffel et al., 215 S.W. 908; Kessler v. Stevens et al., 225 S.W. 937. (6) Charity Kilkenny, the wife of plaintiff and the mother of James F. Kilkenny, deceased, was a competent witness. Laws of Mo. 1921, page 392. (7) Plaintiff, Frank H. Kilkenny, was a competent witness to such facts as he testified to. Relative as to what will disqualify a witness when one of the parties to the contract is dead, the court referred to the case of Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071.
Frank & Stewart, for respondent.
(1) There is no merit in appellant's first point that there was no answer filed to the third count of the petition. It is too late to raise this point after verdict. Potato Growers v. Produce Co., 193 Mo.App. 659. To the same effect. Bird v. Fox, 193 S.W. 941; Wells v. Electric Co., 108 Mo.App. 607; National Stamping and Electric Works v. Wicks, 144 Mo.App. 249. (2) Appellant's second point that when he took up the note with his own money, the presumption is that it was a purchase of the note and not a payment is not tenable for two reasons: (1) Because the record shows that he did not pay any money on this note. (2) There is no room for a presumption in the face of facts. While it is true that appellant now says that he expected the note to be turned over to him, and did not know that it had been cancelled, respondent is not bound by his statement. The bank cashier and the recorder both testify that he said at the time that he wanted the note cancelled and the mortgage released; that he stood by and saw it done, and after it was done, again asked if it was released. This raised an issue of fact, with the preponderance of the evidence against appellant. The court decided this issue of fact against appellant. In the face of such facts, the courts say there is no room for a presumption. "Presumptions have no application where facts are disclosed." Brannock v. Jaynes, 197 Mo.App. 150; Vallery v. Material Co., 211 S.W. 95. (3) The doctrine of subrogation asserted by appellant under point 3 of his brief is not supported by the facts in the record. Even though a stranger pays a mortgage debt at the request of the debtor, he is not entitled to subrogation unless there was an agreement at the time he made the payment that the security should be kept alive for his benefit. Jacobs and Feller v. Webster, 199 Mo.App. 607-608.
This is an action in equity to cancel and set aside the satisfaction and release of a deed of trust, and to subrogate the plaintiff to all the rights of the owner of the note and deed of trust before the release was made. The suit originated as a result of the following events:
Plaintiff is the father of James F. Kilkenny, who died in November 1923, leaving an insolvent estate. The defendant is the widow of James F. Kilkenny, deceased. In March, 1912, James F. Kilkenny purchased a farm, taking title to himself and his wife, creating an estate by the entirety. At the time of this purchase, James F. Kilkenny, whom we will hereafter refer to as James, borrowed $ 1100 from his father, and gave his note therefor. This money was paid as a part of the purchase price of the farm. James, and his wife--who is the defendant here, borrowed $ 5300 from a Mrs. Powell, and gave Mrs. Powell a note for the last-named amount, bearing five per cent. interest, and due five years after date. A deed of trust was also given on the farm in question. The evidence discloses that some time in the early part of the year 1922, James went to his father, who is the plaintiff in this case, and requested him to take up this note and deed of trust held against his farm by Mrs. Powell, saying he would rather his father would hold the indebtedness against his farm than Mrs. Powell. These facts were shown by the testimony of plaintiff's wife, who is the mother of deceased. According to her testimony, she asked James if he could secure his father if he did that. James replied that he could. During the month of March, 1923, plaintiff went with James to the Bank of Monticello, which bank held the original note and deed of trust belonging to Mrs. Powell. James then informed the cashier, Mr. West, that he wanted to pay Mrs. Powell's loan. The cashier called Mrs. Powell over the telephone and obtained permission from her to accept payment for the note and to release the deed of trust. At that time plaintiff gave his son his check for $ 5100, drawn on another bank. The total amount of the indebtedness at that time, including interest, was $ 5119.30. James paid the balance of $ 19.30 with his personal check, making a total of $ 5119.30. This money was then placed to the credit of Mrs. Powell. The cashier of the bank, Mr. West, then took the note, and in company with plaintiff and his son, James, went to the recorder's office to have the deed of trust released. From the cashier's testimony it appears that plaintiff said he did not want a new note, but wanted the note then held by West released from the record. Upon reaching the recorder's office, the recorder was informed of what was desired, and the deed of trust was released of record. Plaintiff says he did not know that the deed of trust was released until after his son's death. His testimony was that he told the recorder that he wanted the lease transferred to him, and that the recorder told him he knew what he wanted; but the recorder testified that he did not remember any such statement being made by plaintiff. Plaintiff also stated that he did not notice the recorder releasing the deed of trust on the margin of the record, and that if he had watched him he would not...
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