McMurray v. McMurray

• Decision Date: 26 May 1914
• Docket Number: No. 17747.,17747.
• Citation: 167 S.W. 513,258 Mo. 405
• Parties: McMURRAY et al. v. McMURRAY et al.
• Court: Missouri Supreme Court

167 S.W. 513

258 Mo. 405

McMURRAY et al. v. McMURRAY et al.

No. 17747.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. APPEAL AND ERROR (§ 548) — QUESTIONS REVIEWABLE — SUFFICIENCY OF EVIDENCE — BILL OF EXCEPTIONS.

In the absence of a bill of exceptions containing all of the evidence, the court on appeal cannot review the findings of fact.

2. FRAUDULENT CONVEYANCES (§ 132) — POSSESSION BY MORTGAGOR.

That a grantor, in a deed of trust to secure a debt, retained possession, if entitled to be considered in determining whether the deed of trust was fraudulent as against the grantor's creditors, is only a fact to be considered in connection with all the evidence in the case.

3. EQUITY (§ 38) — JURISDICTION — GRANTING OF COMPLETE RELIEF.

The court, in a suit to declare void a deed of trust and a deed under foreclosure thereof, revived on the death of the grantor by her administrator, will grant relief to one having a claim against the property, and will not compel claimant to seek relief in the probate court.

4. APPEAL AND ERROR (§ 171) — QUESTIONS REVIEWABLE — THEORY OF CASE IN TRIAL COURT.

Where a case was tried as though a denial of a cross-petition had been filed, the court on appeal must treat the case as if a denial had actually been filed.

5. MORTGAGES (§ 151) — FORECLOSURE — TITLE OF PURCHASER — NOTICE — PRIORITY AGAINST JUDGMENT LIEN.

A title acquired in good faith, and without notice, under a foreclosure of a deed of trust, relates back to the execution of the deed of trust, and is superior to a judgment lien based on a judgment obtained against the grantor subsequent to the execution of the deed of trust.

6. BILLS AND NOTES (§ 362) — PURCHASER OF BONA FIDE PAYEE.

Where a note was good in the hands of the payee because he took it without notice on making a loan, the note was good in the hands of a purchaser thereof with notice.

7. MORTGAGES (§ 415) — VALIDITY — FRAUD.

One who, in good faith, makes a loan secured by a deed of trust may foreclose the deed and purchase the property at foreclosure sale, though in the meantime he has learned of a fraud vitiating the title of the debtor and the grantor in the deed of trust.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Mary McMurray, by her guardian, H. D. Kissenger, revived in the name of Albert E. Martin, as administrator with will annexed of Mary McMurray, deceased, and another, against Kate McMurray and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

On April 1, 1908, Mary McMurray was the owner and in possession of the west 36½ feet of lots 26, 27, 28, 29, and 30, in block 17, Dundee place, an addition to Kansas City, and on that day executed a deed of trust thereon to Richard W. Hocker to secure a loan of $2,500 made by Homer McWilliams to her.

Helen V. Elbert recovered judgments against Mary McMurray before a justice of the peace of Jackson county, and filed transcripts thereof in the office of the clerk of the circuit court of Jackson county on the following dates, and for the following amounts:

Judgment for $300 dated October 23, 1908, filed October 28, 1908.

Judgment for $300 dated October 23, 1908, filed October 28, 1908.

Judgment for $300 dated January 16, 1909, filed April 23, 1910.

Judgment for $300 dated February 23, 1909, filed April 23, 1910.

Judgment for $300 dated December 16, 1909, filed April 23, 1910.

The liens of those judgments have been duly revived and kept alive.

On October 28, 1908, Mary McMurray executed to Nathan Younger a general warranty deed for the property, which was filed on that day, and Younger executed to James E. Lyons a general warranty deed for the property dated November 30, 1908, and filed for record March 3, 1909. Those two last-mentioned deeds were fraudulent as to the creditors of Mrs. McMurray, and were so adjudged by the trial court.

On October 3, 1910, the above-named deed of trust was foreclosed by sale, and Ed. H. Batson became the purchaser and received the trustee's deed for a recited consideration of $4,040. That deed was filed for record October 5, 1910, and on the same day Batson executed a deed of trust to Walter W. Calvin, trustee, to secure a loan of $5,200 made by Beulah L. Ketchum. On May 13, 1911, Batson executed to R. T. Herrick, trustee, a second deed of trust on the land to secure a loan of $600 made by F. E. Colvin. In December, 1911, the note secured by this deed of trust was duly indorsed and assigned to Beulah L. Ketchum.

On September 23, 1911, Mary McMurray was duly adjudged by the probate court to be of unsound mind and incapable of managing her estate, and Sam B. Strother was duly appointed and qualified as her guardian. He commenced this suit as such guardian September 26, 1911, and on March 8, 1912, resigned as such guardian, and H. D. Kissenger was duly appointed and qualified in his place.

On December 18, 1911, the deed of trust for $5,200 dated October 5, 1910, was foreclosed, and Claude T. Goble became the purchaser as trustee for Beulah L. Ketchum for the consideration of $6,228, and received the trustee's deed for the land.

All the above-mentioned deeds were promptly and duly recorded. The third amended petition, filed October 4, 1912, makes all parties connected with the above-mentioned deeds and judgments, and also Katie McMurray, plaintiff's daughter, defendants herein. It alleges that Mary McMurray was insane during all the time in which said instruments were made, and that those instruments were made under a conspiracy between all the defendants except Helen V. Elbert to cheat plaintiff out of her property, and that said instruments were without any consideration, and that defendant then and there knew that plaintiff was of unsound mind.

The petition charges that defendant Katie McMurray had received the rents from the corner building on the property since October 28, 1908, and refused to account therefor. The property is alleged to be worth $15,000. It contains an offer to do equity, and to place all parties in statu quo, and asks that all the above-mentioned conveyances be canceled.

The answer of Beulah L. Ketchum admitted the execution of those conveyances, and denied the other allegations of the petition. It alleged that she made the above loan of $5,200 in good faith, and that at the time this suit was filed she learned for the first time that Batson had held title to the land for Mrs. McMurray, and that it was so held by him to cheat and defraud Mrs. McMurray's creditors.

The answer and cross-petition of Helen V. Elbert alleges the existence of her judgments as above set out and the filing of the transcripts as stated, and then alleges that the conveyances above set out were made with the intention on the part of all the parties thereto to hinder and delay the creditors of Mrs. McMurray, and that said Batson purchased the land at the first foreclosure sale for Mary McMurray, and held the title thereunder for Mrs. McMurray. Then follows a prayer that her judgments be declared first liens on the property, and that all said conveyances be adjudged void. There was no answer by Beulah L. Ketchum to this cross-petition; but the cause was tried as though there were a denial of its allegations.

On May 7, 1912, James R. Page was appointed receiver to take charge of the property, and he duly qualified as such.

On October 4, 1912, after trial, the...