Lee v. Turner

• Decision Date: 30 April 1886
• Citation: 89 Mo. 489
• Court: Missouri Supreme Court
• Parties: LEE et al. v. TURNER et al.¹

89 Mo. 489

LEE et al.

v.TURNER et al.¹

Supreme Court of Missouri.

April Term, 1886.

Appeal from St. Louis court of appeals.

Petition by A. Lee and J. F. Lee in the nature of a bill of interpleader against T. T. Turner and others. Defendant Roemheld appeals.

Louis Gottschalk and Alexander Martin, for appellant.

[COPYRIGHT MATERIAL OMITTED]

T. T. Gantt, for respondent Turner.

BLACK, J.

The petition in this case is in the nature of a bill of interpleader. The defendants, Thomas T. Turner, R. M. Million, and William Roemheld, each made claim to the fund brought into court. Their respective claims arise out of the following transactions: On the 22d day of February, 1876, one Rohn made to the plaintiffs, A. and J. F. Lee, a deed of trust on certain property in the city of St. Louis to secure a note made by Rohn for $9,000, due in three years, payable to Turner as trustee for Mrs. Briggs, and to secure six interest notes. There was a default in the payment of the principal note, and some of the interest notes, and on the 10th of March, 1879, the trustees sold the property, and Turner became the purchaser at $6,000. This sale paid the interest notes, and the trustees indorsed on the principal note a credit of the residue of the proceeds of the sale. Soon after this sale, and in April, 1879, Turner, as trustee, indorsed the note to Million without recourse. On the same day, he took back a contract, reciting the assignment and amount due upon the note, by the terms of which Million was to endeavor to collect the balance from the estate of Rohn, who died previous to the date of the trustee's sale. Million agreed to pay all the costs of litigation, and for his services was to receive one-half of the amount collected, and at the end of eight years return the note, if not collected. Million had allowed in his own name the balance due on the note by the probate court against the estate of Rohn, and in like manner prosecuted suits to set aside deeds alleged to be fraudulent, and to subject the property to the payment of this debt. In 1881, Turner contracted to sell the property which he had purchased at the trustee's sale, when an investigation of the title disclosed the fact that the trustees had only advertised the property for sale for 20 days. The trust-deed required 30. Thereupon, Turner directed the trustees to readvertise and sell the property again, which they proceeded to do. While the property was thus being readvertised, Roemheld loaned Million $3,000, to become due in one year, and as security took an assignment of the Rohn note, which was then in the possession of Million. The resale was temporarily enjoined, and in 1882 the trustees again sold the property at public sale for $12,000, and this is the fund in dispute. The circuit court found and decreed that Roemheld was entitled to be paid $3,000, and the interest thereon, and that Turner should have the residue. This judgment was reversed in the court of appeals, and Roemheld prosecutes this appeal from that judgment.

As between Turner and Million there can be no difficulty. By the indorsement and agreement, both made at the same time, and therefore, as between them, parts of the same transaction, Million had, and could have, no interest in the special security. He took the note upon the supposition and understanding that the security had been exhausted. Besides this, he held the note for the sole purpose of collecting the residue out of other property of the Rohn estate. It is true the note was overdue when transferred by Turner to Million, and long past due when received by Roemheld; but we do not see that the doctrine that a...