Light v. Graham

• Citation: 199 S.W. 570
• Decision Date: 20 December 1917
• Docket Number: No. 2128.,2128.
• Parties: LIGHT et al. v. GRAHAM et al.
• Court: Court of Appeal of Missouri (US)

199 S.W. 570

LIGHT et al. v. GRAHAM et al.

No. 2128.

Springfield Court of Appeals. Missouri.

December 20, 1917.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by Perry Light and another against Nellie Graham and another. From an adverse judgment, defendant Graham appeals. Affirmed.

Holmes & Holmes, of Rolla, for appellant. Frank H. Farris, of Rolla, for respondents.

BRADLEY, J.

The appellant, Nellie Graham, and T. J. Graham were married January 18, 1910, in Phelps county. T. J. Graham had then a grown son living in St. Louis at the time of these troubles; and it appears from the record that T. J. Graham had a few thousand dollars worth of property in lands, notes, and mortgages. On September 13, 1913, the plaintiff Perry Light owed T. J. Graham $150, secured by a chattel mortgage, and on that date he (Light) bought in a piece of land upon which T. J. Graham was foreclosing a deed of trust. It seems that this deed of trust was being foreclosed at the request of the widow of the grantor, or mortgagor, who requested Light to buy it in for her. Anyway, after the foreclosure of the deed of trust Light owed T. J. Graham $370; and he and his wife, Cordelia, on September 13, 1913, executed their note for said amount due in three years, with 8 per cent. interest, and secured this note by giving a deed of trust on 80 acres of land in Phelps county. This note executed by the respondents was by the direction of T. J. Graham made payable to the appellant Nellie Graham. T. J. Graham took the note home, and Mrs. Graham says gave it to her, remarking that she was $370 better off than she was when he started off. The note was placed with the papers of T. J. Graham, and he kept the possession of the note and deed of trust from the time of the execution until paid off by respondents.

The course of true love did not continue to run smooth, and on September 9, 1916, Nellie Graham obtained a decree of divorce from T. J. Graham. The property rights between the Grahams in the divorce case were determined by agreement. This agreement was reduced to writing, and, among other things, provided that T. J. Graham, the defendant in the divorce case, should pay $750 alimony in gross and $50 for attorneys' fees, and that this should be in full settlement of all rights which plaintiff in the divorce case might under any circumstances, or under any condition, have in the property of T. J. Graham. This money was paid and a decree of divorce rendered. Plaintiff's decree of divorce contained this provision:

"It is further considered and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of $750 and the sum of $50 for attorneys' fees. Said sums of money when paid are in full satisfaction of all the claims for alimony, maintenance, and support from the said T. J. Graham, and in full satisfaction of any and all claims which she may now or hereafter acquire in all notes, money, choses in action, or other personal property which the said T. J. Graham now holds, owns, or has possession of."

A copy of this decree was delivered to the attorney for Mrs. Graham in the divorce case, who is the same attorney representing her in the instant case. Mrs. Graham in her evidence in the divorce case, when detailing what property she owned and what her husband owned, made no mention of this note. She gave somewhat in detail the property owned by her husband, but did not specify any particular note, although she said they had about $4,000 in notes. She says she merely forgot the Light note. When she left the premises of her husband she took away her individual property, but did not take nor mention this note. She said nothing about it until after the divorce, when she wrote Mrs. Light from Oklahoma, where she had gone after the divorce. On the due date of the note T. J. Graham, acting for his son, whose money he had, loaned respondents out of his son's money enough to pay the note off. A new note was made payable to the son and secured by a deed of trust. The old note and trust deed were canceled and delivered to respondents, and T. J. Graham satisfied the record. In answer to Mrs. Graham's letter Mrs. Light advised her that T. J. Graham had released it, and put it (the note and trust deed) in his son's name. Thereafter Mrs. Graham caused the trustee, Germann, who was made a party to this suit, to advertise under the deed of trust, and was proceeding to foreclose.

With conditions as above set out, plaintiffs filed their petition in the circuit court praying for an injunction to enjoin the foreclosure. A temporary writ was issued, and this was made permanent upon trial of the issues. From this decree enjoining the foreclosure Mrs. Graham appealed.

The chancellor in his finding of facts as set out in the injunction made this finding:

"The court further finds that prior to said payment of said note and deed of trust and prior to its satisfaction the defendant Nellie Graham, in a proceeding in this court for divorce, had and...