LaKenan v. Robards

• Decision Date: 08 June 1880
• Citation: 9 Mo.App. 179
• Parties: R. F. LAKENAN, Respondent, v. JOHN L. ROBARDS, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 179

R. F. LAKENAN, Respondent,

v.JOHN L. ROBARDS, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 8, 1880.

1. A deed of release executed by the trustee in the deed of trust, without the authority of the cestui que trust and without having received payment of the secured notes, does not discharge the lien.

2. Where, by his own laches, a judgment creditor has lost the lien of his judgment, he is not entitled to the aid of a chancery court.

3. The purchaser of a judgment after the lien thereof has expired, and after the death of the debtor, cannot file a creditor's bill in equity to subject the debtor's realty to the lien of the judgment.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

JAMES CARR, for the appellant: The judgments were allowed in the Probate Court, and became preferred claims.-- Prewitt v. Jewell, 9 Mo. 732. The appellant, as a judgment creditor, had a right to redeem.-- Gray v. Shaw, 14 Mo. 346. A lien is not necessary to entitle a judgment creditor to redeem.-- Merry v. Fremon, 44 Mo. 518; Allnut v. Leper, 48 Mo. 319. A trustee who releases the deed of trust divests himself of the legal title.-- Gott v. Powell, 41 Mo. 416; Rutherford v. Williams, 42 Mo. 18.

GEORGE P. STRONG, for the respondent: The trustee has no power to release the deed of trust unless satisfaction thereof has been received by him.-- Ewing v. Shelton, 34 Mo. 518; Grove v. Robards, 36 Mo. 523. Having lost his lien by his own laches, and having failed to take advantage of his remedy at law, the appellant cannot now invoke the aid of a court of equity.-- Stevenson v. Saline, 65 Mo. 430; Wood v. Augustine, 61 Mo. 51; Jainey v. Spidden, 38 Mo. 402.

BAKEWELL, J., delivered the opinion of the court.

This was a proceeding in equity against the widow and heirs at law of one Archibald S. Robards, deceased, and the trustee of a deed of trust executed by Robards in his lifetime, to secure a note to Grove, the original plaintiff. The general object of the proceeding was to set aside a satisfaction of the deed of trust alleged to have been fraudulently made by the trustee. The bill was dismissed, and on appeal this judgment was reversed. Grove v. Heirs of Robards, 36 Mo. 523. A change of venue was taken from the Hannibal Court of Common Pleas to the Circuit Court of St. Louis County. Meanwhile the plaintiff died, the widow died, the trustee died, the original administrator died, and when the cause came up for trial, on November 21, 1877, the action had abated as to the widow and trustee, and there was a default as to all the other defendants except John L. Robards, one of the sons of Archibald S. Robards, deceased, who had filed an amended separate answer in November, 1870.

The original petition on which the case was tried was filed in September, 1864, and alleges, substantially, that Archibald S. Robards, deceased, together with his wife, executed a deed of trust dated July 21, 1860, to Thompson as trustee, to secure a note of Robards to Grove of same date, for $1,120, at six months, bearing interest after maturity at ten per cent. The property conveyed by the deed was lot 7 in block 47 in Hannibal, Missouri, together with a house erected thereon. That Robards died on June 21, 1862, having paid on said note $200 and all interest to March 21, 1861; that at the request of plaintiff the holder of the note, and, according to the terms of the deed, Thompson, the trustee, advertised the property for sale under the deed, and plaintiff became the purchaser at the sale for $900, on September 2, 1863, being the best bidder, and on the next day received a deed from the trustee, which was duly recorded; that notwithstanding the note described by said deed was not paid, Archibald S. Robards and John L. Robards fraudulently represented to Thompson, the trustee, that the same was paid, and thereby induced him to execute and place on record a deed of release of said deed of trust, dated April 30, 1861. The petition sets out that the defendants named are the administrators, the widow, and the heirs at law of Archibald S. Robards, and that the widow has commenced proceedings to have dower assigned to her in the realty in question. The prayer is that the widow be restrained from proceeding further in the action for dower, and that the fraudulent release be set aside.

The widow and trustee filed separate answers, verified by affidavit, as the practice then was, in which they say that at the time the trustee executed the deed of release the note described in the deed of trust in question was in fact paid by a note made by Robards to the order of Grove, for $1,250, dated March, 1861, at one hundred and eighty days, and secured by deed of trust executed by Robards to H. H. Wardlaw, trustee of Grove, and accepted by Grove in payment of the first note, and that the trustee satisfied the first deed of trust at the request of Grove.

The amended separate answer of John L. Robards, filed in 1870, sets up that the note described above, in the answer of the other defendants, was secured upon the buildings and improvements described in the deed of trust mentioned in plaintiff's petition, and also on part of lot 1 in block 10 in the city of Hannibal, and that this second deed of trust authorized Grove to collect the rent of these improvements and apply them to the payment of the note; that this second note was received by Grove in payment of the first, and that, upon receiving it, Grove instructed Thompson to satisfy the first deed of trust, which was accordingly done; that Grove then fraudulently refused to surrender the former...