Massmann v. Pollock

• Decision Date: 08 November 1932
• Docket Number: No. 21496.,21496.
• Citation: 53 S.W.2d 1105
• Parties: MASSMANN v. POLLOCK et al.
• Court: Missouri Court of Appeals

53 S.W.2d 1105

MASSMANN v. POLLOCK et al.

No. 21496.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Suit by E. H. Massmann against Frank Pollock and others. From the judgment for plaintiff against all defendants, named defendant appeals.

Reversed as to named defendant.

Clarence G. Baxter and Campbell Allison, both of Clayton, for appellant.

Cole & Hukriede, of Union, and James Booth, of Pacific, for respondent.

BENNICK, C.

This is a suit, instituted on January 25, 1930, the general purpose of which was to have the court declare a warranty deed, absolute upon its face, to be a mortgage, and to foreclose the same. E. H. Massmann is the plaintiff, and Guy L. Rowland, Rosa P. Rowland, and Frank Pollock are the defendants, the latter of whom has alone appealed from the judgment rendered in favor of plaintiff and against all the defendants.

The petition alleged, in substance, that all the defendants, on December 1, 1923, had executed and delivered to plaintiff their promissory note for $6,400, due in five years, and bearing interest at the rate of 6 per cent. per annum, payable semiannually; that, contemporaneously with the execution and delivery of the note, defendants Guy L. Rowland and Rosa P. Rowland had executed and delivered to plaintiff their warranty deed by which they conveyed to plaintiff certain described real estate situate in Franklin county, Mo.; that said deed, though absolute upon its face, was, as a matter of fact, contracted by and between the parties thereto to be an equitable mortgage given to secure the payment of the note; that it was not intended by the parties that it should be an absolute deed, but was made to and accepted by plaintiff as security for the payment of the note; and that the principal sum of the note, together with the interest thereon from June 1, 1928, was due and unpaid.

The prayer was that judgment be rendered for plaintiff and against defendants on the note for the sum of $6,400, with interest thereon at the stated rate from June 1, 1928; that the equity of redemption of defendants Guy L. Rowland and Rosa P. Rowland in the real estate be foreclosed, and the said real estate sold to satisfy the amount due; that, if said mortgaged property be not sufficient to satisfy the debt, damages, and costs, then the residue be levied on the other goods, chattels, lands, and tenements of all the defendants; and that such other and further relief be accorded to plaintiff as to the court should seem equitable and just.

Suit was filed in the circuit court of Franklin county, where the land lay, though none of the defendants resided or were to be found in such county. The Rowlands were residents of St. Louis county, and summons was directed to and service had upon them by the sheriff of that county. Pollock, on the other hand, lived in Gasconade county, and summons was directed to and service had upon him by the sheriff of that county.

At the return term of the writ, defendant Pollock appeared specially for the purpose of pleading to the jurisdiction, and filed a plea in abatement, challenging the jurisdiction of the court over his person. His plea was overruled, whereupon he answered to the merits, combining with his answer, however, the identical plea to the jurisdiction which had theretofore been overruled.

Inasmuch as the Rowlands have not appealed, their defenses, if any, are now of no consequence, and, as a matter of fact, their answer has not been brought up by counsel in the abstract of the record. Defendant Pollock, for his part, admitted having signed the note, but denied that he had signed the same on the date thereof, or for any consideration moving to him.

Further answering, he alleged that, if there was a consideration for the execution of the note to plaintiff by the Rowlands, of which he had no information or knowledge, said consideration had long since passed at the time he signed said note; that he signed the same long after it had been executed and delivered by the Rowlands to plaintiff; that he signed the same wholly without consideration at the time, and that no new consideration for the execution thereof ever passed between the parties thereto; that the note as to him was a mere naked promise, and wholly void and unenforceable; that, if the deed in question had been given to plaintiff by the Rowlands as security for the loan of $6,400, as was alleged in the petition, then it was the duty of plaintiff to exhaust said security before suing him on the note; and that he had signed the note on December 16, 1923, long after it had been executed and delivered by the Rowlands to plaintiff, wholly for the accommodation of plaintiff, and without consideration.

The reply was in the conventional form.

A trial was had, and in due course the court entered its decree, finding that defendants, for a valuable consideration, on December 1, 1923, had executed and delivered to plaintiff the note mentioned in the petition; that contemporaneously with the execution and delivery of the note defendants Guy L. Rowland and Rosa P. Rowland had executed and delivered to plaintiff the warranty deed; that said deed, though absolute upon its face, was, as a matter of fact, contracted and intended by the parties thereto to be an equitable mortgage to secure the payment of the note, and that it was so made to and accepted by plaintiff; and that said note was due and unpaid, together with the interest thereon from June 1, 1928, for which the court found for plaintiff and against all the defendants in the sum of $7,082.

The judgment of the court was as follows: "Wherefore, it is ordered, adjudged, and decreed by the Court that plaintiff recover of and from defendants the said sum of $7,082, and that said deed be and is hereby declared and adjudged to be a mortgage, and that the equity of redemption of defendants Guy L. Rowland and Rosa P. Rowland, his wife, in said real estate be foreclosed, and that said real estate be sold to satisfy the amount due and unpaid as aforesaid; that if the said mortgaged property be not sufficient to satisfy said debt, damages, and costs, then the residue be levied on and of the other goods, chattels, lands, and tenements of all the said defendants, and that plaintiff recover of and from defendants the costs and expenses of this action,...