Miller v. Heisler

• Decision Date: 03 April 1944
• Docket Number: No. 38787.,38787.
• Parties: MILLER et al. v. HEISLER et al.
• Court: Missouri Supreme Court

180 S.W.2d 54

MILLER et al. v. HEISLER et al.

No. 38787.

Supreme Court of Missouri, Division No. 1.

April 3, 1944.

Rehearing Denied May 2, 1944.

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

Action by Howard Miller and another against Lewis A. Heisler and others on a promissory note and to have the judgment declared a lien upon certain lots. From a judgment for plaintiffs, defendants Moss H. Silverforb and Samuel E. Segelbohm appeal.

Cause transferred to Court of Appeals.

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

Hovey, Beals & Boley and Dwight Beals, all of Kansas City, for respondents.

BRADLEY, Commissioner.

Plaintiffs held a promissory note for $2,000, dated May 31, 1938, due in 90 days, bearing interest at 7% from date, and signed by defendant Lewis A. Heisler and one F. B. Broeker. Plaintiffs filed this cause to recover judgment against Heisler on the note and to have the judgment declared a lien upon the east half of lot 10 and all of lots 11 and 12, block 2, Dundee Place, Kansas City, and plaintiffs asked that the lien be adjudged prior and superior to any claim of appellants or either of them. The trial court found for plaintiffs, granted the relief asked, and Silverforb and Segelbohm, defendants below, appealed.

Defendant Lewis A. Heisler, Broeker, and others, including Silverforb, according to plaintiff Howard Miller, were engaged in organizing an insurance company in Kansas City, to be known as the Mutual Standard Casualty Insurance Company. Lewis was president and Silverforb general counsel. Plaintiff Howard Miller had been a mail clerk for 23 years, and had laid by a little money. The Millers, husband and wife, "got acquainted" with some of the insurance company promoters, and obligingly loaned the $2,000 which presumably went into the insurance company.

To secure the note, the Millers got an assignment, prepared by Silverforb (according to Howard Miller), of a $2,000 interest in a $40,000 deed of trust, balance due $26,225. The $40,000 deed of trust was on lots 3 and 4, block 10, Keith & Perry Addition, Kansas City, and known as the Sinclair Apartments. Ida C. Heisler was the payee named in the note secured by the $40,000 deed of trust, but the assignment to the Millers was signed, in his own name, by Lewis A. Heisler, Ida's husband. At the time of the assignment, which was contemporaneous with the execution of the $2,000 note, the $40,000 deed of trust and the $40,000 note secured thereby were in the possession of the Chrisman-Sawyer Bank, Independence, Missouri, endorsed in blank by Ida C. Heisler, and was pledged to that bank to secure an $8,000 note owed by the Heislers.

Later, and unknown to the Millers, the Heislers paid off the $8,000 note 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 Dundee Place property upon which plaintiffs seek the lien. The title to the Dundee Place property was taken in the name of Ida C. Heisler. March 24, 1939, the Heislers executed a warranty deed to the Dundee Place property, naming H. L. Nehls, 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, but was actually delivered to Silverforb, according to Lewis A. Heisler, and Silverforb, according to Heisler, erased Nehls' name and inserted his own name as grantee, and thereafter recorded the deed. Silverforb gave a deed of trust on the property to appellant Segelbohm.

From the above, it is apparent that a question of jurisdiction arises. Such question is not raised in the briefs, but when such question arises, it is our duty to determine it, whether raised by the parties or not. Perkins v. Burks et al., Mo. Sup., 61 S.W.2d 756. In endeavoring to comply with our Rule 15, appellants state in the brief that jurisdiction of the appeal is in the supreme court because title to real estate is involved. See Sec. 12, Art. 6, Constitution, and Sec. 5, Amendment of 1884, Mo.R.S.A. And unless title to real estate is involved, the appeal did not lie to the supreme court.

Plaintiffs do not seek to set aside Silverforb's deed or Segelbohm's deed of trust. All they ask, so far as concerns the question of title, is that the judgment against Lewis A. Heisler on the $2,000 note be made a special lien upon the Dundee Place property, and that the lien be declared prior and superior to any claim of either of the defendants below.

In Jine v. Jine, Mo.Sup., 217 S.W. 93, the parties were mother and daughter; the daughter was plaintiff. She alleged that at the request of her mother she advanced to her, over a period of years, $9305.86 ($3940.75 repaid); that the advancements were made under an express promise that the mother would repay out of certain insurance policies carried by the mother and out of certain real estate owned by the mother; that the mother repudiated the promise to reimburse, and endeavored to change the insurance; that a large part of the money advanced was used by the mother to pay off an indebtedness on the real estate. The daughter asked judgment against the mother for the balance due, and that the judgment be made a special lien upon the real estate. The trial court found for the mother, and the daughter appealed. The appeal was to this court on the theory that title to real estate was involved within the meaning of Sec. 12, Art. 6, Constitution. It was held that title was not so involved.

In Brannock v. Magoon et al., 216 Mo. 722, 116 S.W. 500, the facts, so far as pertinent to the question in hand, were these: The plaintiff was Walter J. Brannock; the defendant, Lydia E. Magoon, was plaintiff's moth...