Long v. Von Erdmannsdorff

• Citation: 111 S.W.2d 37
• Decision Date: 14 December 1937
• Docket Number: No. 35022.,35022.
• Parties: LONG v. VON ERDMANNSDORFF et ux.
• Court: Missouri Supreme Court

111 S.W.2d 37

LONG v. VON ERDMANNSDORFF et ux.

No. 35022.

Supreme Court of Missouri, Division No. 1.

December 14, 1937.

Appeal from Circuit Court, Newton County; Emery E. Smith, Judge.

Action by Sarah Alice Long against Ernest Von Erdmannsdorff and wife. From an adverse decree, plaintiff appeals.

Affirmed.

George V. Farris and A. H. Garner, both of Joplin, for appellant.

George P. Walker and Grant Emerson, both of Joplin, for respondents.

FERGUSON, Commissioner.

The plaintiff, appellant herein, alleges in her bill or petition, and the evidence shows, that defendants, by warranty deed, conveyed the north half of two subdivision lots, in Newton county, to her, subject to a deed of trust in favor of the Greene County Building & Loan Association; that the warranty deed contained a provision whereby defendants, grantors therein, agreed to pay the then balance of the indebtedness secured by the deed of trust, but that default occurred in the payment thereof and the deed of trust was foreclosed; that at the foreclosure sale defendants purchased the land and same was conveyed to them by the trustee's deed. Whereupon plaintiff brought this suit in equity praying the court to declare and enforce a trust in the land in her favor, and that defendants be declared to hold title to the land as trustees for her benefit. While the above facts, relied upon by plaintiff as the facts of the situation, are conceded, defendants adduced evidence tending to show other and additional facts, which, if accepted, as they evidently were by the trial chancellor, tend to sustain defendants' position and the finding by the trial chancellor in their favor.

We shall therefore undertake a review of the evidence as a whole. In 1931, Alice Long loaned $1,400 to the defendants, Ernest and Edith Von Erdmannsdorff, husband and wife. The promissory note in that amount executed by the Erdmannsdorffs, and dated May 1, 1931, was made payable to plaintiff. Without setting out the various parts of the testimony of both plaintiff and her husband bearing on the matter, it suffices to say, and the observation is pertinent here, that the testimony of both plaintiff and her husband shows beyond question that this loan was made by them jointly; indeed, the conclusion is well-nigh inescapable that it was the husband's money and for some reason of their own convenience the note and the deed of trust securing same were taken in the wife's name alone, and that in this transaction and the subsequent resulting transactions they acted jointly with the husband having full authority to act for both. The Erdmannsdorffs executed a deed of trust on certain lots "in Dunwoody's Sub-division, in Newton County," securing their $1,400 note. This deed of trust was subject to a prior and first deed of trust against the lots in favor of the Greene County Building & Loan Association securing a note to the association in the original amount of $1,500 of which a balance remained unpaid. Some time later the Erdmannsdorffs entered into a contract to sell the north one-half of two of the lots described in the deed of trust in favor of Mrs. Long to one Hill, with the purchase price payable in monthly installments. In 1934, negotiations were had between the Longs and the Erdmannsdorffs relative to the discharge of the $1,400 note payable to Mrs. Long and the release of the deed of trust securing same. These negotiations culminated, on May 1, 1934, in the following settlement: The Erdmannsdorffs conveyed the north one-half of two of the lots described in the Long deed of trust, being the same parcel or tract of land described in the Hill contract of sale, by warranty deed to Mrs. Long, subject to the deed of trust to the Greene County Building & Loan Association, the balance, at the time, remaining unpaid on the note secured by the Building & Loan deed of trust being $543.28, which, by proviso in the warranty deed, the Erdmannsdorffs agreed "to pay and hold the second party harmless"; the Erdmannsdorffs at the same time assigned their sale contract with Hill, on which there was an unpaid balance of $1,704.72, to Mrs. Long, and executed a note in the principal sum of $515.36, payable in monthly installments of $25, with interest, secured by a chattel mortgage on some automobile trucks owned by Mr. Erdmannsdorff. It is conclusively shown, and undisputed, that thus on, and under date of May 1, 1934, the Erdmannsdorffs delivered the warranty deed and note for $515.36, secured by chattel mortgage, and assigned the Hill contract, upon which there was an unpaid balance of $1,704.72, to the Longs. On the same date the Longs canceled and surrendered the Erdmannsdorff's $1,400 note and released of record their deed of trust securing same. Mr. Erdmannsdorff testified that the Longs demanded that he and his wife...