Madison v. Williams

• Decision Date: 07 May 1929
• Docket Number: No. 20560.,20560.
• Citation: 16 S.W.2d 626
• Parties: MADISON et al. v. WILLIAMS, Sheriff, et al.
• Court: Missouri Court of Appeals

16 S.W.2d 626

MADISON et al. v. WILLIAMS, Sheriff, et al.

No. 20560.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Suit by Marie G. Madison and others against Ray Williams, Sheriff of Jefferson County, acting trustee, and others. From a judgment dismissing petition, plaintiffs appeal. Reversed and remanded, with directions.

P. S. Terry, of Festus, for appellants.

Clyde Williams, of Hillsboro, and Virginia Booth and James Booth, both of Pacific, for respondents.

BENNICK, C.

This suit has for its purpose the cancellation of a promissory note for $1,500, dated February 15, 1920, and a deed of trust securing the same, upon the ground that the debt represented by the note had been extinguished. Wm. T. Madison and Marie G. Madison, his wife, were the makers of the note, and the Citizens' Bank of Festus was the payee. The said Wm. T. Madison died on October 20, 1922, and this suit was filed on June 9, 1927, by the plaintiffs in their several capacities of administratrix, widow, and heirs at law, of the deceased. Ray Williams, sheriff of Jefferson county, Mo., and acting trustee, the Citizens' Bank of Festus, N. W. Brickey, its president, Charles Porter, its cashier, and Chas. C. England, one of its directors, were named as defendants.

The petition recited the execution by the Madisons of a certain promissory note, in favor of the Bank of Hillsboro, secured by a deed of trust on 275.5 acres of land, owned by Wm. T. Madison in Jefferson county; and a foreclosure under such deed of trust on September 29, 1923.

It was further alleged that, prior to the foreclosure, demands in the total sum of $4,984.12, had been allowed against the estate of the deceased, in favor of its creditors; and that among such demands was that of defendant Citizens' Bank of Festus for $2.424.31, which amount covered all the indebtedness of Wm. T. Madison to it, including the $1,500 note in litigation, and a note for $180, referred to in the evidence as the Ogle note, which it seems Madison had signed as surety.

The petition then alleged that, prior to the sale under the foreclosure, the creditors of the estate, together with the widow of the deceased, acting for herself and the other plaintiffs, employed and authorized one Edmund Kerruish to purchase the land as trustee for his principals, under an agreement whereby he was to resell the same, pay the demands of the several creditors, and return the surplus, if any, to the widow and those she represented.

It was further alleged that, at the sale, Kerruish, acting as dual trustee, bought the land, and subsequently conveyed the same to one Murphy, under an agreement with defendant bank and its officers that, if the notes for the purchase price paid by Murphy, and the deed of trust securing same, should be made payable to defendant bank, it would cause the note for $1,500 to be marked paid, and the deed of trust securing it to be canceled and released of record; but that, notwithstanding such agreement, defendants failed and refused to mark the note paid, and to return it to plaintiffs, and to cause the deed of trust to be canceled and released.

It was then alleged that the Ogle note for $180 had been fully paid and satisfied; and that defendants were threatening to foreclose under the deed of trust securing the $1,500 note.

The prayer of the petition was that the $1,500 note, and the deed of trust securing it, be canceled, marked paid, released, and held for naught; that plaintiffs have and recover of defendants the sum of $180; that defendants be restrained and forever prohibited from collecting the $1,500 note, and executing the trust mentioned in the deed of trust; and that the plaintiffs should have such other and further relief as to the court should seem meet and proper.

Defendants in their answer denied that they at any time agreed to cancel the note or indebtedness, and release the deed of trust of record, but averred that no part of such indebtedness had been paid, and that the deed of trust was a valid and existing lien against the real estate therein described; and, further answering, stated that the Ogle note had been paid by James Ogle personally, that no part of such note had been paid by the estate of the deceased, and that they were not indebted to the estate of the deceased in any sum on account of said note.

In due course the case was heard by the court upon the issues joined, resulting in a finding for defendants, and a dismissal of plaintiffs' petition. A motion for a new trial was filed and overruled; and, from the judgment rendered, plaintiffs have duly appealed.

There was no dispute in the evidence about the fact that Wm. T. Madison and Marie G. Madison, his wife, had executed two deeds of trust, one upon a parcel of land (to which it appears that Madison never acquired title), to secure a note for $1,500, made payable to defendant Citizens' Bank of Festus; and the other upon 275.5 acres of land, to secure an indebtedness of approximately $16,000 due to the Bank of Hillsboro. After Madison's death, and in September, 1923, the Bank of Hillsboro gave notice of its intention to foreclose under its deed of trust, which notice came to the attention of the creditors of the Madison estate, including defendant Citizens' Bank of Festus.

Prior to this time, demands in the total sum of $4,984.12 had been allowed against the estate of the deceased in favor of its several creditors, among which were two demands of defendant Citizens' Bank of Festus, one for $2,424.31, which included the $1,500 note here involved; and the second for $180, the face value of the Ogle note, which Madison had signed as surety.

When the creditors were apprised of the forthcoming sale under the deed of trust held by the Bank of Hillsboro, a group of them, including defendant Citizens' Bank of Festus, met in the latter's banking house and authorized one of their number, Edmund Kerruish, at the time a substantial stockholder in, and vice president of, defendant bank, to bid in the land at the sale, and take title thereto in his name as trustee for the others. Kerruish thereupon proceeded, for reasons which will hereafter appear, to confer with Mrs. Madison, and informed her that her land was to be bought for the benefit of the creditors, and that it was his intention to dispose of the property in such manner, if possible, as to pay all the outstanding claims of the creditors, and save the home and a few acres of land for her and her children. Meanwhile, Mrs. Madison had received offers of assistance from other sources, one being an offer of $20,000 from P. S. Terry, and another of $18,000 from Martin Plass, both of which she refused as being less advantageous to her than the proposition made by Kerruish.

On the day of the sale, only a few bidders appeared, evidently on account of the fact that the intentions of Kerruish had become generally known; and the property was, in fact, sold to him for the sum of $16,000. The creditors for whom he had acted thereupon assessed themselves 50 per cent. and 10 per cent. of their respective claims, so as to reduce the amount which defendant bank would be called upon under their agreement to carry as a loan against the property, and the bank then made a loan to Kerruish of $13,500, and secured the same by a deed of trust upon the land.

The property was thus held until in 1925, when the bank found one Murphy, from St. Louis, who agreed to purchase the land for the sum of $22,000. Kerruish thereupon executed a deed to Murphy, who in turn placed a deed of trust against the property to secure the payment to defendant bank of three notes he had given it for the purchase price, two for $6,000 each, and a third for $10,000.

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