Miller v. Heisler

• Decision Date: 02 April 1945
• Docket Number: No. 20566.,20566.
• Citation: 187 S.W.2d 485
• Parties: MILLER et al. v. HEISLER et al.
• Court: Missouri Court of Appeals

187 S.W.2d 485

MILLER et al. v. HEISLER et al.

No. 20566.

Kansas City Court of Appeals. Missouri.

April 2, 1945.

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

"Not to be published in State Reports."

Action by Howard Miller and another against Lewis A. Heisler and others to recover on a promissory note and establish a lien on realty. From a judgment for plaintiffs, defendants Moss H. Silverforb and Samuel E. Segelbohm appealed to the Supreme Court, which transferred the cause to the Court of Appeals, 180 S.W.2d 54.

Judgment affirmed.

Moss H. Silverforb, Chas. N. Sadler, Harold Waxman, and R. W. Cummins, all of Kansas City, for appellants.

Hovey, Beals & Boley, of Kansas City, for respondents.

CAVE, Judge.

This is a suit on a promissory note as to defendant Lewis A. Heisler and to establish an equitable lien upon certain real estate as to defendants Moss H. Silverforb, Samuel E. Segelbohm and Henry D. Carpenter, trustee in a deed of trust. After trial, as a suit in equity, the court entered judgment on the note against Heisler, from which no appeal was taken; the court also declared the judgment on the note a special lien upon certain real estate, the legal title of which was in the name of Moss H. Silverforb, and upon which he had given a deed of trust to secure an alleged loan made to him by defendant Segelbohm; the court declaring the lien of this judgment to be superior to the Silverforb-Segelbohm deed of trust. From this judgment, Silverforb and Segelbohm appealed to the Supreme Court. That court held that title to real estate was not involved and transferred the cause to this court.

A brief outline of the evidence will be helpful in understanding the issues later discussed.

Plaintiffs' evidence shows that defendant Heisler and one Broeker and others, including Silverforb, were engaged in organizing an insurance company in Kansas City, to be known as the Mutual Standard Casualty Insurance Company. Heisler was to be treasurer and Silverforb general counsel and a director. Plaintiff Miller had been a mail clerk for 23 years and had laid by a little money. He and his wife "got acquainted" with some of the insurance company promoters who wanted to borrow some money from them. In May, 1938, he and his wife met with Heisler, Broeker and Silverforb and, at that meeting, agreed to make a loan of $2,000, but the Millers demanded some security. Heisler stated that he held a mortgage on certain property located at 814 Troost Avenue to secure a note for $40,000 on which there was a balance due of approximately $26,000, and he offered to assign a $2,000 interest in that mortgage and debt to secure the Miller loan. At that time this note and deed of trust were held by the Chrisman-Sawyer Bank of Independence, Missouri, as collateral security for a debt of $8,000 which the Heislers owed the bank. Later, Mr. and Mrs. Miller inspected the property at 814 Troost, and also saw and examined the Heisler note and deed of trust at the bank. Thereafter, the Millers met with Heisler and Silverforb and again discussed the question of the loan and the assignment as security. The loan was made and the assignment delivered on May 31, 1938.

Later, and unknown to Miller, Heisler paid off the $8,000 loan to the Chrisman-Sawyer Bank, got possession of the $40,000 note and deed of trust, and traded the note as part payment on the purchase price of the real estate here involved, being: The east half of lot 10, and all of lots 11 and 12, block 2, Dundee Place, Kansas City, Missouri. This property will hereafter be referred to as the "Dundee Place property." The title to the property was taken in the name of Ida C. Heisler. On March 24, 1939, the Heislers executed a warranty deed to the "Dundee Place property," naming one H. Nehls, Jr., Cedar Rapids, Iowa, as grantee, and delivered the deed to Nehls to secure a loan of $1,000. Nehls did not record the deed. Later, the $1,000 loan was paid to Nehls and the deed was returned, and, according to Heisler, was actually delivered to Silverforb, and Silverforb, according to Heisler, erased Nehls' name and inserted his own name as grantee, and thereafter, on October 21, 1939, recorded the deed. On the 19th day of June, 1939, the Millers recorded a lis pendens notice in the Recorder's office of Jackson County, to the effect that they had filed a suit against Heislers on the $2,000 note and were claiming an equitable lien for that debt on the "Dundee Place property."

The loan of $10,000 from Segelbohm to Silverforb and the deed of trust on the "Dundee Place property" to secure the same were made on October 18, 1939, and the deed of trust recorded December 5, 1939.

The assignment to secure the $2,000 note of the Millers, is as follows:

"This assignment made this 31st day of May, 1938, by me, Lewis A. Heisler, to Howard and Mary E. Miller of Kansas City, Jackson County, Missouri, do hereby assign and transfer unto Howard & Mary E. Miller the Two Thousand Dollar ($2000.00) interest in and unto a First Deed of Trust having a present balance of Twenty Six Thousand Two Hundred Twenty Five Dollars ($26,225.00), being secured by property known as Lots 3 and 4, Block 10, Keith & Perry Addition, on which is located the St. Clair Apartment, at 814 Troost Avenue, in Kansas City, Jackson County, Missouri, as security for the repayment of a loan of Two Thousand Dollars ($2,000.00) made to me and F. B. Broeker this above date; and upon the repayment of the sum of Two Thousand Dollars ($2000.00) at seven percent (7%) interest from date hereof at any time, upon my request or by my agents, assigns, administrators or executors, this security is to be held for naught and the said note given and signed by me and F. B. Broeker secured by this assignment this date is to be returned to me.

                       "(Signed) Lewis A. Heisler
                "Witness
                 __________
                  "Terms and conditions of the repayment
                of this assignment are agreeable to us and
                are so acknowledged
                          "(Signed) Howard Miller
                          "(Signed) Mary E. Miller
                

"Subscribed and Sworn to before me, this 31st day of May, 1938."

Other evidence will be referred to in our discussion of assigned errors.

Appellants first contend that the assignment is void because, "the assignment of a mortgage without the debt is void," this on the theory that the mortgage and note are separate instruments. The case of Southern Missouri Trust Company v. Crow, Mo.App., 272 S.W. 1040 does hold they are separate and distinct contracts, but does that aid appellants? It is true the written assignment refers to "the first deed of trust having a present balance of $26,225, being secured by property known as, * * *" and does not specifically mention the word "note"; however, all the evidence is to the effect that what the Heislers intended to assign and considered they had assigned, and what the Millers intended to have assigned and what they understood had been assigned, was an interest in the note as well as the deed of trust.

In Johnson County v. Bryson, 27 Mo.App. 341, 349, this court, in discussing the question of an assignment of an undivided interest in a debt, quotes, with approval, this rule: "The form of words used in making the agreement is not alone to receive attention, but all the circumstances of the transaction are to be considered. It is a rule in equity that anything which shows an intention to assign, on the one side, and from which an assent to receive may be inferred, on the other, will operate as an assignment if sustained by a sufficient consideration. * * *" See, also, Murry et al. v. Central Bank, 226 Mo.App. 400, 40 S.W.2d 721; Thayer v. Campbell, 9 Mo. 280; Wheless v. Meyer & Schmid Groc. Co., 140 Mo.App. 572, 120 S.W. 708.

The assignment refers to the first deed of trust "having a present balance of $26,225, being secured by property known as. * * *" This language is indicative of the intent of the parties. It can only refer to the debt as "having a present balance" and "being secured by property." It is the debt that has a "balance" and is "secured," not the deed of trust. Furthermore, the oral testimony makes it crystal clear that the Heislers intended to assign an interest in the note or debt as well as the deed of trust securing the same, and that the Millers intended to and did assent to receive such an assignment and, there being a consideration, the assignment is valid in so far as appellants' first contention is concerned.

They next assert that the assignment is invalid, because there was only a partial assignment of the $26,000 note. To support that contention they cite the case of Howard Undertaking Company v. Fidelity Life Insurance Co., Mo.App., 59 S.W.2d 746, 748, wherein it is stated: "* * * No suit may be maintained against a debtor for partial assignment without his consent even at law or in equity." (Italics ours.) This is the correct rule in Missouri, but it has no application here because the maker of the $26,000 note is not a party to this suit, is not being sued on the note, and its validity or invalidity is not called in question in the present case. The maker of that note is the only person who could make the contention appellants assert. See Johnson County v. Bryson, supra. However, Silverforb contends he stands in the shoes of the maker of the original note. We find nothing in the record to justify that assertion and our attention is directed to nothing by the appellants. Silverforb never owned the $40,000 note or the real estate securing it and was never liable for its payment.

Appellants also contend that even if the assignment is valid it would be in the nature of a chattel mortgage only, and since the assignment was not recorded it would be good only between the parties. We are referred to Sec. 3486, R.S.Mo.1939, Mo.R.S.A. which concerns chattel mortgages, and to Barnard State Bank v. Lankford, 223 Mo.App. 519, 11 S.W.2d 1084, and General Motors Acceptance Corporation v. Farm & Home Sav. & Loan...