Llewellyn v. Butler

• Decision Date: 05 January 1915
• Docket Number: No. 13874.,13874.
• Citation: 172 S.W. 413,186 Mo. App. 525
• Parties: LLEWELLYN v. BUTLER et al.
• Court: Missouri Court of Appeals

172 S.W. 413

186 Mo. A. 525

LLEWELLYN v. BUTLER et al.

No. 13874.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

1. APPEAL AND ERROR (§ 1009) — FINDINGS — EQUITY CASES.

Findings in equity cases, while not conclusive on appeal, should be deferred to.

2. MORTGAGES (§ 282) — TRANSFER OF PROPERTY — PERSONAL LIABILITY OF GRANTEE.

A vendee of real property, who accepts a conveyance reciting that he agrees to pay a mortgage debt thereon, becomes personally liable to the mortgagee.

3. MORTGAGES (§ 282) — TRANSFER OF PROPERTY — PERSONAL LIABILITY OF GRANTEE.

Where a deed containing a covenant requiring the grantee to pay a mortgage was executed and recorded without the knowledge of the grantee, the mortgagee cannot, the grantee not having ratified the conveyance, recover against him personally, for the right of the mortgagee to hold the grantee personally liable is based on the right of the grantor to do so.

4. DEEDS (§ 87) — RECORDATION — EFFECT.

The recording of a deed, while evidence of delivery and acceptance, will not warrant a finding that the grantee assented to an onerous obligation imposed by the deed.

5. MORTGAGES (§ 280) — TRANSFER OF PROPERTY — ASSUMPTION OF DEBT.

A husband desiring to transfer incumbered property to his wife conveyed it to defendants, recording the deed without their knowledge or approval. Thereafter the defendants, by a deed which obligated the grantee to assume payment of a mortgage, conveyed the property to the wife. Held, that as a grantee who assumes payment of a mortgage debt is liable, though his grantor is not liable, the insertion in the deed, by which defendants conveyed the property of the covenant obligating the grantee to assume the mortgage, does not show their ratification of a similar covenant in the deed to them.

6. DEEDS (§ 76) — VALIDITY — COVENANTS.

Where a conveyance to defendants, who acted as conduit of title, obligated them to pay a mortgage, the deed was not void, because the covenant was invalid.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by F. W. Llewellyn against D. W. Butler and another. From a judgment for defendants, plaintiff appeals. Affirmed.

David H. Robertson and Fry & Rodgers, all of Mexico, Mo., for appellant. E. S. Gantt, of Mexico, Mo., for respondents.

ALLEN, J.

This is an action to recover a a balance of $979 remaining unpaid upon a promissory note of $1,800, executed by defendants W. E. Bever and Dora D. Bever, his wife, to the order of plaintiff, dated May 8, 1911, and secured by deed of trust upon a house and lot in Mexico, Mo. The note and the deed of trust were executed as a part and parcel of a transaction whereby defendant W. E. Bever traded to plaintiff the equity in a farm for the above-mentioned property. Thereafter Bever and his wife executed a warranty deed, of date June 20, 1911, conveying the house and lot to defendants D. W. Butler, and Eliza E. Butler, his wife, which deed recited that the same was made and accepted subject to the deed of trust securing the above-mentioned note, and that the said grantees assumed and agreed to pay said note. This deed was recorded on June 29, 1911. Thereafter a warranty deed, of date July 8, 1911, was executed by Butler and his wife, conveying the property to defendant Dora D. Bever, wife of W. E. Bever, which deed was not recorded until June 3, 1912. On June 7, 1912, the deed of trust was foreclosed for nonpayment of the note, and the house and lot sold to satisfy the debt. At the sale plaintiff's attorney purchased the property for $1,000. This sum, after the payment of the expenses of the sale, was credited upon the debt and interest, leaving a balance of $979 which is sought to be recovered in this action.

The suit proceeds not only against the said makers of the note, but against D. W. Butler and his wife, Eliza E. Butler, upon the theory that the two last-named defendants became personally liable to plaintiff under and by virtue of the above-mentioned assumption clause in the deed by which the property was conveyed to them. These defendants filed a separate answer in which, among other things, it is averred that the deed to them was executed without their knowledge and consent, and that they had no knowledge of the existence thereof for a long time after its execution; that it was never delivered to them, but was placed of record without their knowledge or consent, and that they did not learn of the contents thereof until long afterwards; that they did not in fact purchase the property, nor pay anything therefore, but that said transfer was made to them merely in order to pass title through them from defendant W. E. Bever to the latter's wife; and that they were a mere conduit of title. The prayer of this separate answer is for a reformation of the deed, or that it be declared void.

The court sitting as a chancellor entered a decree finding, among other things, that the deed to defendants D. W. Butler and Eliza E. Butler was made without their knowledge or consent, and that neither of them then knew of the contents thereof; that said defendants did not purchase the property, nor pay any consideration therefor, but that the conveyance to them was made solely for the purpose of transferring the title from W. E. Bever to his wife, Dora D. Bever; and that said deed was void. Judgment was thereupon rendered in favor of defendants W. D. Butler and Eliza E. Butler, and against the other defendants; and the plaintiff appealed.

It appears that defendant Bever, who is a son-in-law of defendant Butler, is a man who can scarcely read and write, but slightly versed in business affairs, and of but little experience in transactions of this character. The testimony adduced in support of the separate answer of Butler and his wife tends to show that Bever desired to transfer the title to this property to his wife, Butler's daughter, and was told that it would be necessary to convey the same to a third person, who would reconvey to the wife, whereupon he suggested to the scrivener a conveyance...