Leavitt v. Taylor

• Decision Date: 21 May 1901
• Citation: 163 Mo. 158,63 S.W. 385
• Parties: LEAVITT v. TAYLOR et al.
• Court: Missouri Supreme Court

63 S.W. 385

163 Mo. 158

LEAVITT v. TAYLOR et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

BILLS AND NOTES—FRAUD—KNOWLEDGE OF FACTS—EVIDENCE — APPEAL — FINDINGS OF FACT—EXCEPTIONS—NECESSITY.

1. Findings of fact by the court, separate and distinct from its conclusions of law, stand as a special verdict or an agreed case, in the absence of exceptions thereto; and hence, if the conclusions of law based thereon are correct, the judgment will be affirmed.

2. Plaintiff, a loan broker, testified that he paid $585 for the note sued on, which was for $800, and secured by deed of trust. His detailed statement of his assets showed that he had no money at the time of purchasing the note, with which he could have paid therefor. He made his check for the note, payable to the agent personally, though he required him to indorse it and acknowledge and execute a formal assignment of the note and deed of trust in the name of the agent's company. He did not prove that the check, or the amount it called for, was ever paid. He knew that the note was given for a patent right sold by his transferror, that one of the makers was a married woman, and that the land mortgaged was hers. Held, that plaintiff took the note with knowledge of the infirmities attaching to it by reason of the agent's fraud in its procurement.

Appeal from circuit court, Gentry county; C. A. Anthony, Judge.

Action by George P. Leavitt against Maggie B. Taylor and L. W. Taylor. From a judgment for defendants, plaintiff appeals. Affirmed.

This is ejectment for the possession of a farm containing about 108 acres of land in Gentry county. The petition is in the usual form. The defendants, though husband and wife, answered separately. In both answers, however, it is admitted that Mrs. Taylor is in the possession of the land, but all other allegations in the petition are denied. The answer of Mrs. Taylor then alleges that she is a married woman, having been married to her co-defendant on the 8th day of April, 1870; that she is the owner in fee of the land, having acquired title thereto by warranty deed on the 22d day of March, 1884, and that said deed contained no provision making said land her separate equitable estate; that the plaintiff claims title to the land by virtue of a trustee's sale thereof made by one Frank Jones on the 4th day of January, 1898, under a pretended deed of trust claimed and alleged by said plaintiff to have been made, executed, and acknowledged by this defendant and her said husband on the 25th day of November, 1895; that said deed of trust was false, fraudulent, and forged, and not the act and deed of her, the said defendant, but was obtained from her by fraud, deceit, and misrepresentation, without her knowledge and consent. The answer of the wife then proceeds to set out at length the fraud practiced upon her, which was, in brief, that on said date one Kubach appeared at her house in King City, in said county, and represented himself to be the general agent of the National Fence-Machine Company, a corporation located in the state of Kansas, and that he had made and entered into a contract with her husband by which he was to act as agent of said company in the sale of its patent, and of machines, territory, etc., in certain counties in the state of Iowa; that the patent fence machine was a very useful article, and that he (Kubach) had made fabulous sums by its sale, etc.; that he represented that he had made a "little contract" with her husband, and wanted her to sign a contract or guaranty that her husband would faithfully look after the interests of the company in the territory to which he should be assigned, and that he did not want her to give any mortgage or lien upon her land, but only the contract aforesaid; that she is poorly educated, and could not read writing or printing, except with the greatest difficulty; that she was practically without business experience; that Kubach presented to her a document partly written and partly printed, folded so as to expose but a small portion of it, and assured her it was simply the contract above mentioned; that, being deceived by him, and being unable, pressed and solicited as she was by Kubach, and from her experience in business matters, to detect the fraud, she did subscribe her name to two papers, or in two places, as indicated by Kubach, and she has since been informed that the papers so signed under the circumstances aforesaid were a promissory note for $800, dated Stanberry, Mo., November 25, 1895, due on or before the 1st day of November, 1897, payable to said National Fence-Machine Company, with interest at 8 per cent. per annum, and a deed of trust conveying the land described to one Frank Jones for the alleged purpose of securing said note. It is also alleged in said answer that all of the statements and representations of Kubach were willfully false; that the note and deed of trust were not the act and deed of said defendant; that the certificate of acknowledgment thereto was false and untrue, and that she never acknowledged the same, or knew that she had executed such an instrument until long after the date thereof; that plaintiff, before he acquired any interest in said property, had full knowledge of all the facts aforesaid; that defendant had no interest in said contract, except, as she supposed, as surety for her husband for the faithful performance of his duties as agent; that said note and deed of trust were not given by her on her own account, or in the transaction of her own business, or in the purchase of property on her own account, nor did she have any interest whatever in the transaction which culminated in the execution of the papers aforesaid under the circumstances aforesaid, and that said promissory note was and is, as to her, void under the laws of this state. The answer concludes with a prayer for the cancellation of the deed of trust, trustee's deed and note. The husband filed a separate answer of the same general tenor of that of the wife, though not in all respects similar to it, and concluding with a like prayer. The plaintiff filed replies to each of said answers, which consisted merely of general denials of the allegations of new matter, but did not allege affirmatively that plaintiff was an innocent purchaser, in good faith, of the note and deed of trust, or of the land. The trial was had before the court, who, after having heard all the evidence, at the request of plaintiff made a finding of facts which is as follows: "Now, on this day, this cause coming on to be heard, come the parties in person and by their counsel, and thereupon all and singular the matters are submitted to the court upon the pleadings and the proofs, and the court, having fully considered the same, doth, at the request and upon the motion of the plaintiff, make the following findings of fact, to wit: No. 1. That the defendant Maggie B. Taylor was the owner of the following lands, to wit: The south half of the northeast quarter of section No. 21, and the northeast quarter of the northeast quarter of section No. 21, except fifteen (15) acres out of the northeast quarter thereof; also three and 2/100 acres out of the southeast corner of the northwest quarter of the northeast quarter of section No. 21, all in township No. 61, of range No. 31, in Gentry county, Missouri, containing 108 and 2/100 acres, conveyed to her in 1884 by warranty deed, which deed did not by its terms give her a separate equitable estate therein. That she was married to the defendant L. W. Taylor in 1870. No. 2. The court further finds that on the 25th day of November, 1895, L. W. Taylor met one Kubach at Stanberry, Missouri, and entered into...