Merrick v. Stephens

• Citation: 337 S.W.2d 713
• Decision Date: 30 July 1960
• Docket Number: No. 7875,7875
• Parties: Joe D. MERRICK, Plaintiff-Appellant, v. Rolla STEPHENS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 713

337 S.W.2d 713

Joe D. MERRICK, Plaintiff-Appellant, v. Rolla STEPHENS, Defendant-Respondent.

No. 7875.

Springfield Court of Appeals, Missouri.

July 30, 1960.

Motion for Rehearing or to Transfer Overruled Sept. 9, 1960.

Charles D. Tudor, Joplin, for plaintiff-appellant.

Stanley P. Clay, Joplin, for defendant-respondent.

RUARK, Judge.

This is an appeal by an unsuccessful plaintiff from a judgment entered September 16, 1959, which judgment denied to plaintiff recovery for payments theretofore made on a mortgage deed of trust and which, on defendant's counterclaim, found plaintiff indebted to the defendant on such mortgage and decreed foreclosure of the lien of the same, with the further provision that if the real estate security did not fully satisfy the indebtedness the balance be recovered by general levy.

The plaintiff-appellant, Joe D. Merrick, was a minor and did not attain his twenty-first birthday until March 1, 1954. The transactions here mentioned in reference to the note and mortgage, occurred in December of 1952 and thereafter during a period prior to plaintiff's majority. Appellant's counsel frankly conceded in argument that Merrick was emancipated. Hence, we will not belabor the preliminary facts further than to furnish some background.

When plaintiff was a child, he had received some money in settlement of a personal injury lawsuit. Later some of those funds were used to buy at least one car, later a small registered Guernsey herd, and still later some money was used when he decided to get married. Since before graduation from high school at the age of nineteen he was employed at a weekly salary. After graduation he was regularly employed. He drew his own salary, spent it as he saw fit, and maintained his own bank account. In September 1952 he enlisted in the Air Force. When he enlisted he sold his Guernsey herd and put the money in his bank account. He received a medical discharge from the Air Force on October 27, 1952.

As to his physical appearance, about all we know is that Merrick said he wore glasses and that at the time of the transactions in question he was 'bigger and heavier' than he was at the time of trial in October 1956. Another witness said he 'looked like' he was twenty-one and 'I can't see much change.'

When Merrick decided to join the Air Force he became engaged and gave his fiancee an engagement ring. After he was discharged he and his fiancee went house hunting. They met one Boyd, then a salesman for the defendant, at a home which was on open house display. They told Boyd they were interested in buying a home Later they met Boyd at defendant's office, looked over a display board, and selected the type of property they wanted. He showed them some property, and negotiations began. The house they decided to buy belonged to a Mr. and Mrs. Swiney. The price was $4,500 and the property was subject to a mortgage in the amount of approximately $2,750. Merrick had to finance the deal, and Boyd took an application for a loan. In so doing, he filled in a blank form which shows, among other things, the name, residence, and age of the appellant. The figure filled in the blank for age is twenty-one. Boyd testified that this entry was made from Merrick's statement. Merrick denies that he told Boyd he was twenty-one. Later Merrick and his fiancee went in to talk to defendant-respondent Stephens about the financing. Stephens said the girl looked young and that he commented, 'Aren't you a little young?' and that plaintiff Merrick spoke up and said, 'That is all right. I am buying the property myself. We are not married yet.' Merrick says he has no recollection of such statement. The notary public who later took Merrick's acknowledgment to the deed of trust testified that as a part of her formalized acknowledgment she always stated, 'You, being of lawful age. * * *,' that she did so with Merrick, and that he answered yes. Merrick denies this. He says that he understood a purchaser was 'supposed' to be twenty-one. He had previous experience in the purchase of cars. He wondered why they didn't ask his age, but no one did and he didn't volunteer it. Evidently the capable and experienced circuit judge did not believe Merrick's denials. Neither do we.

The deal was consummated. Stephens had a commitment for the loan from one Scott (who held the Swiney loan) but took it in the name of a straw party, advanced his own money, and closed the deal by which Merrick took clear title from Swiney. (Later the note was transferred to Scott.) Merrick paid a total of $1,112.96 by check on his bank account to cover the down payment plus expenses and gave the deed of trust in the amount of $3,400. This mortgage called for monthly payments of $45. Neither the parents nor the prospective inlaw parents had anything to do with the transaction.

Shortly thereafter Merrick made some small changes in the house, purchased furniture, and on February 15, 1953, was married and moved in. Of this marriage a child was born the following December. In June 1953 Merrick and his bride were separated. Upon such separation Merrick went to Wichita to work for Boeing Aircraft. During the period between the purchase and the separation Merrick paid in to Stephens's office as payments on the mortgage the total sum of $225, which Stephens remitted to Scott, the then mortgage holder. This is the sum the plaintiff-appellant sought to recover by his petition in this action.

Merrick says the only reason he gave up the house was the separation. He had no further use for it. After the separation in June of 1953 he went back to Stephens and listed the property for sale (at $5,250) and entered into a rental agency agreement. The premises first were rented for $50 per month. Stephens credited Merrick with $45 (as payment on the loan to Scott) and endeavored to forward the balance each month to Merrick, but by that time this suit was in the making, and Merrick, on the advice of his counsel, refused to accept the checks for the overage between rental and mortgage payments. On June 25, 1954, Merrick filed his notice of disaffirmance of the whole transaction as is provided by Section 442.080.

All we have in the record concerning the pleading begins with what is denominated Count II of plaintiff's (now appellant's) second amended petition (filed June 11, 1956). In this Count II of such second amended petition plaintiff (Merrick) charges that he executed a note for $3,400, payable $45 per month, to a straw party for defendant Rolla Stephens; that said sum was supposed to be paid to the Swineys as part payment for the property; that plaintiff paid to Stephens the sum of $225 as monthly payments; that on July 31, 1953, plaintiff repudiated the obligation and demanded the return of the payments so made; that plaintiff became twenty-one on March 1, 1954, and that he had filed written disaffirmance of the contract. The prayer was for $225 plus interest.

The defendant (now respondent) filed an answer which refers to a previous judgment rendered on behalf of Merrick against the Swineys, stating that it is premature and null and void. He admits making the $3,400 loan as agent of Scott, and then makes affirmative allegations as follows:

(1) At the time of the deal plaintiff was emancipated and sui juris.

(2) Stephens acted strictly and only as agent for Swiney and Scott and handled the money only as a conduit.

(3) Plaintiff has fraudulently conspired with third parties to remove the title to the property from himself and from the Swineys so that he is unable to make the defendant whole and has never done anything which would make it possible to restore the status quo.

(4) Plaintiff represented himself to be of age and defendant relied upon these representations and plaintiff is now estopped.

(5) Plaintiff has never effected a rescission because he has never tendered back anything he received.

(6) As to the $225, the plaintiff was in possession and had the use of the premises and if he did not own them he was liable for the rent.

(7) The purchase was for a home and was a necessity for which plaintiff is liable in any event.

(8) Plaintiff actually paid only $1,100 and the balance ($3,400) was a simultaneous loan, a part of the one transaction.

That through fraudulent manipulation after he became of age the plaintiff has caused title to pass to third persons who bought at execution sale subject to said deed of trust, and plaintiff has ratified and has no further interest in the property.

By way of counterclaim the defendant (now respondent) asserted the deed of trust to Scott and its later repurchase by Stephens and default in payment by which it became due. The counterclaim further contains the statement that 'defendants Richard G. Lewis and Frances E. Lewis, husband and wife, have or claim some interest which is junior to the lien.' The prayer is that the equity of redemption be foreclosed; that defendant recover the amount of 'debt and damages'; that the property be sold to satisfy said 'debt, damages, and costs'; and that the residue be levied out of the goods, et cetera, of the plaintiff.

Now here the picture becomes more cloudy. There was another judgment in this case. We gather from the colloquy of counsel before court and from the exhibit (sheriff's deed of date September 9, 1954) showing sale of the property under execution the following facts. But as preface to our 'gathering,' there is no record of any pleadings or judgment, or exhibits of such, to justify our assumptions other than the exhibit in reference to the execution sale and statements of counsel to the court below and in this court. The whole record of the whole case is not in the transcript. We note that at trial below the respondent was insistent that the whole proceeding, including that involving the first judgment, be considered in the trial on Count II both in that court and 'in the appeal of the case,' and to this the plaintiff-appellant agreed, subject to...