La Monte Bank v. Crawford

• Decision Date: 05 May 1930
• Docket Number: No. 16902.,16902.
• Citation: 27 S.W.2d 762
• Parties: LA MONTE BANK v. CRAWFORD.
• Court: Missouri Court of Appeals

27 S.W.2d 762

LA MONTE BANK v. CRAWFORD.

No. 16902.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Error to Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by the La Monte Bank against Mrs. Lucy E. Crawford. Judgment for defendant, and plaintiff brings error.

Affirmed.

See, also, 13 S.W.(2d) 1101.

James T. Montgomery, of Sedalia, for plaintiff in error.

A. L. Shortridge, of Sedalia, for defendant in error.

BLAND, J.

This is an action to recover $1324.27 with interest, being the amount of a deficiency upon the foreclosure of a deed of trust made by a third party. It is claimed that the defendant assumed and agreed to pay the indebtedness secured by the deed. There was a verdict and judgment in favor of defendant. Plaintiff has appealed.

The facts show that prior to June 22nd, 1925, defendant was the owner of two shares of stock in the Farmers and Traders Bank which she had decided to dispose of upon the advice of her brother. This advice was based upon her brother's experience as a stockholder in a Kansas bank which had failed to his loss. On said date defendant's husband, on her behalf, traded the stock for property in La Monte. This property was encumbered with the deed of trust in question and was owned by one Nieweg and wife. Before making the trade defendant told her husband that she desired to dispose of the stock. They also discussed the fact that the Nieweg property was subject to a deed of trust in the sum of $2750.00.

Defendant was the only witness in reference to the circumstances surrounding the trading of the property. She testified that she did not tell her husband to trade for the property; we understand from her testimony that she left the matter entirely to him with the exception that she told him not to get her into any trouble. When asked what she meant by getting her into trouble she stated that "I wanted to get out of the bank and thought maybe the bank would get me into trouble." It is quite apparent that defendant left the whole matter of the advisability of making the trade, as well as its details to her husband. She testified that she was a woman without any business experience; that the only business she had ever had was buying the stock, which was bought for her by her husband; that she did not at any time talk to the Niewegs concerning the trade.

In making the trade her husband received for defendant a warranty deed to the real-estate reciting that it was conveyed upon a consideration of $3250.00. There is no evidence as to the value of the stock, as to what it was valued at in the trade, or whether defendant's husband traded for the equity in the property or otherwise. There is nothing in the record relative to these matters outside of the recitals in the assumption clause in the deed of trust. The stock paid no dividend. The warranty deed recited that the property was conveyed: "Subject to a Deed of Trust on all of the above property for Twenty-seven Hundred and Fifty Dollars ($2750.00) that the said Lucy E. Crawford assumes and agrees to pay as a part of the purchase price." The deed of trust referred to was given by the Niewegs in favor of the plaintiff. After the property was conveyed to defendant there was a default in the payment of the notes secured by the deed of trust resulting in foreclosure. The object of this suit is to recover a deficiency judgment against defendant.

Defendant further testified that when her husband brought the warranty deed home that she did not read it but "put it up"; that she did not know what it contained; that the first time the clause with reference to the assumption of the deed of trust was explained to her was after her husband said "there was something wrong with the deed" and after he had shown the deed to her attorney and "brought it home and told me what was in it, that was the first time I ever even read it." Apparently the first time she knew of the assumption clause in the deed was after the foreclosure and the prospect of this suit against her by the plaintiff. She testified that she collected the rents on the property "up to the time it (the deed) was foreclosed." There is no evidence that she paid any interest upon the $2,750.00 encumbrance upon the property. She testified that she at no time agreed to pay the indebtedness in question.

It appears that the warranty deed was recorded on July 13th, 1925. Defendant testified that she did not know that it was necessary to record it; that she did not tell her husband to record it and did not know when it was recorded. There was no evidence that any contract relative to the conveyance of the property was entered into between the Niewegs and defendant or her husband prior to the execution of the warranty deed.

At the close of all of the testimony plaintiff offered a peremptory instruction to find for it, which was refused. Thereupon the court gave three instructions at its request, including instructions A and B. In instruction A the jury were instructed that if they found that the defendant's husband was acting as her agent in the purchase of the property and that her husband accepted for the defendant the warranty deed in question containing the assumption clause, their verdict should be for the plaintiff. Instruction B told the jury that if the defendant accepted the warranty deed from the Niewegs and that the deed contained the assumption clause, their verdict should be for the plaintiff.

On behalf of the defendant the court gave, among others, her instruction numbered one. This instruction told the jury that although the deed contained the assumption clause that "this does not bind the defendant to pay said encumbrance or any part thereof, unless there was an agreement" between the Niewegs and defendant that the latter assumed and agreed to pay plaintiff's note.

It is insisted by the plaintiff that the court erred in refusing to give its instruction directing a verdict for it. In this connection it is argued that the deed containing the assumption clause was not only accepted by defendant's husband as her agent, but that the deed was delivered by him to her and that she accepted it and went into...