Kurtz v. Fischer
| Decision Date | 09 June 1980 |
| Docket Number | No. WD,WD |
| Citation | 600 S.W.2d 642 |
| Parties | Mildred E. KURTZ, William L. Kurtz, Sr. and William L. Kurtz, Jr., Appellants, v. Adam B. FISCHER and Howard Quarries, Inc., Respondents. 30746. |
| Court | Missouri Court of Appeals |
Robert H. Ravenhill, Marshall, for appellants.
James T. Buckley, Sedalia, for respondents.
Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.
In this action plaintiffs-appellants sought to avoid the encumbrance of a deed of trust which conveyed real estate as security for repayment of a note held by defendant Howard Quarries, Inc. The claim to relief was founded on assertions that the deed of trust was without consideration, was procured by coercion and by fraud and misrepresentation. Upon a bench trial, the issues were found in favor of defendants and this appeal followed.
The points asserted here as error can best be perceived when stated with cognizance of the facts preceding preparation and execution of the instruments in question. Those facts were, in the main, and as recited below, not the subject of any dispute.
William L. Kurtz, Jr. (hereafter Kurtz, Jr.) was in the employ of Howard Quarries, serving in the position of office manager. On June 15, 1977, a shortage of funds to the extent of $133,353.00 was discovered in the company accounts and Kurtz, Jr. was questioned. Subsequent inquiry disclosed the deficiency to be the consequence of embezzlement. Criminal charges were lodged against Kurtz, Jr. and he was arrested and jailed.
While in confinement, Kurtz, Jr. discussed with representatives of Howard Quarries arrangements for restitution and recommendations for leniency in prosecution of the criminal charges. Howard Quarries was prepared to accept deferred repayment, but substantial collateral beyond the extent of Kurtz, Jr.' § immediate assets was demanded. It was at this point that consideration turned to the subject real estate.
Kurtz, Jr.'s mother, Mildred E. Kurtz (hereafter Mildred) had inherited from her parents a farm of some 146 acres in Cooper County. The record here does not fully disclose the origin and details of title, but at the time in question, Mildred owned fee simple title to a portion of the property and a life estate in the balance with the remainder to the heirs of her body. Mildred was then 70 years of age and Kurtz, Jr. was her only child. The farm was apparently worth at least $100,000.00 and was considered by the Howard Quarries representatives to be adequate security for repayment of the embezzled funds.
After some discussion between Kurtz, Jr. and a representative of Howard Quarries, the latter proposed that Kurtz, Jr. sign a note payable to Howard Quarries due 90 days from date for the amount claimed to have been misappropriated. Additional terms required that repayment of the note be collateralized by a deed of trust conveying a security interest in the Cooper County farm. The deed of trust, of course, would be effective only if signed by Mildred and by her husband William L. Kurtz, Sr. (hereafter Kurtz, Sr.) as well as by Kurtz, Jr. With his parents' signatures yet to be obtained, Kurtz, Jr. signed the deed of trust and the promissory note, he alone being the maker of and obligated on the note.
When the instruments were signed by Kurtz, Jr., he had not spoken with his parents about his problems and had made no request that they join in providing security for payment of his debt. The representative of Howard Quarries conducting the negotiations for recovery of the misappropriated money was a lawyer who knew Mildred and Kurtz, Sr. and who had some information about their real estate holdings by reason of having prepared a will for Mildred at an earlier date. It was he who obtained the legal description of the Cooper County farm and drafted the note and deed of trust. After obtaining the signatures of Kurtz, Jr. to the instruments, the lawyer went to the home of Mildred and Kurtz, Sr. with the objective of obtaining their signatures to the deed of trust. Kurtz, Jr. neither sought nor was afforded an opportunity to discuss the transaction with his parents.
At trial, Mildred described her encounter with the lawyer, who also testified to substantially the same details of the conversation. Kurtz, Sr., who was also present and participated in the discussion with the lawyer, had died before trial. His deposition had been obtained but it was not offered and his testimony is therefore not a part of this record.
Upon the evidence of Mildred and the attorney, the trial court could reasonably have found that the following occurred in the conversation preceding the signing of the deed of trust by Mildred and Kurtz, Sr. Mildred was informed for the first time as to details of her son's difficulties, although some word of the arrest had apparently been included in a local news broadcast. The lawyer representing Howard Quarries presented the deed of trust and offered Mildred the opportunity to read it, but she did not do so indicating that "she did not feel up to it." She was informed that if the deed of trust were signed and if Kurtz, Jr. failed to pay the note evidencing the misappropriated funds within 90 days, foreclosure of the farm by sale could result. In response to questions by her, Mildred was informed that by signing the deed of trust she would aid her son in obtaining the extension of time to repay the debt, a recommendation of leniency would be made to the prosecutor and release of her son on bond would be facilitated. Apparently, participation in the discussion by Kurtz, Sr. was minimal.
At the close of the conversation, Mildred and Kurtz, Sr. signed the deed of trust, acknowledgement of the signatures was made by the lawyer's secretary who had accompanied him to the Kurtz home for this purpose and the instrument was thereafter recorded promptly.
Subsequent events are not fully disclosed by this record which does not include any reliable assessment of the total sum actually determined to have been misappropriated by Kurtz, Jr. or the balance which remained due on the note at the time of trial. It may, however, be concluded that some restitution was made but that a substantial balance remained unpaid when the note matured in 90 days. Kurtz, Jr. was prosecuted on...
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