Lappin v. Crawford

• Decision Date: 08 June 1909
• Citation: 221 Mo. 380,120 S.W. 605
• Parties: LAPPIN et al. v. CRAWFORD et al.
• Court: Missouri Supreme Court

120 S.W. 605

221 Mo. 380

LAPPIN et al. v. CRAWFORD et al.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

MORTGAGES (§ 79) — VALIDITY — DURESS.

After foreclosure of a mortgage, the mortgagee agreed to reconvey the land to the mortgagors on receipt of a certain sum by a specified date. Defendant, for a commission which he received, agreed to procure a loan of the amount for the mortgagors. He neglected to close the loan until late in the afternoon of the last day allowed for payment, and then, after the mortgagors had signed notes and a trust to the lender, defendant, taking advantage of the mortgagors' extremity, and without consideration, compelled them to execute two notes for $500 each to him, secured by a second trust deed, on pain of his refusal to complete the loan, which to his knowledge would have resulted in their loss of the right to redeem. Held that equity would grant relief by canceling the trust deed and the notes executed to defendant.

Appeal from Circuit Court, Greene County; G. W. Goad, Special Judge.

Action by Mollie Lappin and others against A. B. Crawford and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Hamlin & Seawell, for appellants. Hamlin & Hawkins, for respondents.

GANTT, P. J.

This is the second appeal in this cause. The first appeal was from a judgment sustaining a demurrer to the bill, and that judgment was reversed by this court. Lappin v. Crawford, 186 Mo. 462, 85 S. W. 535. After the cause was remanded, the defendants filed their answer and the plaintiffs their reply, and the cause was tried, and a decree rendered in favor of the plaintiffs, canceling the notes described in plaintiffs' petition, and setting aside the deed of trust securing the same. Within due time the defendants took the proper steps to perfect an appeal to this court. The petition is set forth in full in the report of this case on the former appeal in 186 Mo. 462, 85 S. W. 535, and it is therefore unnecessary to reproduce it in full at this time. After the cause was reversed, the defendants filed their joint answer, in which they stated that for a long time prior to March 3, 1900, plaintiffs were the owners of the real estate described in their petition, subject, however, to a certain deed of trust payable to one John O'Day, and that on the 3d day of March, 1900, said O'Day foreclosed said deed of trust, and at said sale John O'Day, Jr., became the purchaser of said real estate for the sum of $1,000; that some time after the date of the foreclosure plaintiffs came to the defendant Crawford, and told him that the place had been sold, and that they had lost it, and requested the defendant to purchase said land from the said O'Day, or procure the title for them, and stated at the time that said farm was reasonably worth $12,000; that afterwards the said Crawford told them that he could procure a deed from the said O'Day for the sum of $7,000, and could procure a loan on said farm for them of $5,760, and if they would negotiate said loan, and give him (the said Crawford) their note for $1,000, divided into two payments of $500 each, and would secure the same by a deed of trust on the land, he would procure the title to the said land for them; that they agreed to do so, and did on the 17th day of March, 1900, execute to one Sprague a note for $5,760, and secured the same by a deed of trust on said real estate, said note to bear interest at the rate of 5 per cent., and they also executed another note to Jerome Dickerson for $576 for the commission to the said Dickerson for making the Sprague loan, and secured said note by second deed of trust on said real estate, and executed two notes to this defendant Crawford for $500 each, to mature six and seven years, respectively, and secured said notes by the third deed of trust on said real estate; that the entire transaction was fully explained to the plaintiffs, and that they agreed to the same, and executed said notes and deed of trust to defendant Crawford with full knowledge of their contents. Defendants aver that plaintiffs have no interest in this action, and are not the owners of the real estate or the real parties in interest. In their reply the defendants denied that they agreed to execute to the defendant Crawford the two notes of $500 each, but say that the said notes were executed because said Crawford refused to permit said loan to be made until they were executed, and that no consideration passed from the defendants to the plaintiffs for the same, wherefore plaintiffs pray judgment as stated in their petition.

At the conclusion of all of the evidence, at the request of both parties, the court made a special finding of facts, which is in the following words:

"That on or about February 26, 1896, plaintiff George Lappin purchased of J. R. Willyard the following described land situated in Greene county, Mo., to wit: The E. ½ of the E. ½ of section 16, and the W. ½ of section 15, all in township 28, range 22, containing 320 acres, subject to a deed of trust executed by said Willyard in favor of John O'Day to secure notes payable to John O'Day, amounting to $7,000, which sum grantee and plaintiff George Lappin assumed and agreed to pay; said deed to Lappin for consideration of about $9,000, and was recorded March 17, 1900.

"That on or about March 3, 1900, plaintiff having defaulted in the payment of the notes and interest thereon, amounting at that time to about $7,420, secured by the deed of trust executed by said Willyard to John O'Day, the above-described land was sold at trustee's sale, and bid in by said John O'Day, or for him.

"That prior to said trustee's sale, and by virtue of the O'Day deed of trust, plaintiffs applied to defendant Crawford for a loan of $7,000, with which to pay off and satisfy said O'Day deed of trust, O'Day having at that time agreed with plaintiffs to throw off $420 of his debt.

"That in pursuance of said application, defendant Crawford had Jerome Dickerson examine said land above described, with the view of procuring a loan of $7,000 from said Jerome Dickerson for plaintiffs. That said Dickerson, after examining said land, refused to make a loan of $7,000, and agreed to make a loan of $6,000 on said farm.

"That after, or a short time prior to, the time of said trustee's sale foreclosure of the O'Day deed of trust (on March 3, 1900), plaintiffs, having been informed that Dickerson refused to make a $7,000 loan, but that he (Dickerson) would loan $6,000 on said land, went to Dickerson, and informed him that O'Day would carry $1,000 if he (Dickerson) would loan the $6,000 on said land. That Dickerson, at that time, refused to make the $6,000 loan, if there was to be any other incumbrance on said land, but did agree to make the $6,000 loan if there were no other incumbrance, plaintiffs being advised of such agreement.

"I find that at some time near the date of said trustee's sale, on March 3, 1900, said O'Day agreed with plaintiffs that he (O'Day) would throw off $1,420 of his debt against plaintiffs, and agreed that they might redeem said land on the payment to him of the sum of $6,000 on or before March 17, 1900.

"I find that prior to March 17, 1900, defendant Crawford had knowledge of the fact that John O'Day had agreed with plaintiffs to throw off said $1,420, and permit plaintiffs to redeem said land on the payment to him (O'Day) of the sum of $6,000, on or before March 17, 1900.

"I find that prior to March 17,...