Moore v. John J. Dowling Realty Co.

• Decision Date: 20 March 1945
• Docket Number: No. 26725.,26725.
• Citation: 186 S.W.2d 519
• Parties: MOORE v. JOHN J. DOWLING REALTY CO. et al.
• Court: Missouri Court of Appeals

186 S.W.2d 519

MOORE v. JOHN J. DOWLING REALTY CO. et al.

No. 26725.

St. Louis Court of Appeals. Missouri.

March 20, 1945.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be reported in State Reports."

Action in the nature of a bill of interpleader by Elmer S. Moore and another against John J. Dowling Realty Company and others, based on a controversy between the defendants relative to the ownership of two notes secured by deed of trust on realty. From a judgment in favor of the estate of Anna S. Harrison, deceased, Margaret Harrison, as an individual and as executrix of the estate of Anna S. Harrison, deceased, and John F. Maloney, as administrator pendente lite of the estate of Anna S. Harrison, deceased, the defendant John J. Dowling Realty Company alone appeals.

Affirmed.

John C. Kappel, Jr., and James E. Higgins, both of St. Louis, and George F. Heege, of Clayton, for appellant.

Leo F. Laughren, of St. Louis, for respondents.

SUTTON, Commissioner.

On September 23, 1941, plaintiffs, Elmer S. Moore and Winifred Moore, commenced this action in the Circuit Court of St. Louis County, by a bill of interpleader, against defendants, John J. Dowling Realty Company, a corporation, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling, as officers of John J. Dowling Realty Company, a corporation, and the Estate of Anna S. Harrison, deceased, Margaret Harrison as an individual and as executrix of the Estate of Anna S. Harrison, deceased, and John F. Maloney as administrator pendente lite of the Estate of Anna S. Harrison, and W. S. Steele, trustee.

The bill was founded on a controversy between the defendants relative to the ownership of two promissory notes secured by a deed of trust on real estate at 6532 Bartmer Avenue, in University City, St. Louis County, executed by plaintiffs. One of the notes was for the principal sum of $6,000 and the other was an interest note for $180. These notes had become due prior to the filing of the bill.

The trial upon the bill of interpleader resulted in an order sustaining the bill, which order on appeal was affirmed by this court. See: Moore v. John J. Dowling Realty Co., Mo.App., 166 S.W.2d 238.

Pursuant to the order sustaining the bill of interpleader, plaintiffs deposited in the registry of the court $6,180. The notes and deed of trust were cancelled, and the plaintiffs were discharged.

Defendant John J. Dowling Realty Company answered, claiming the fund deposited in the registry of the court. Defendants John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling answered, disclaiming any interest in the fund. Defendant John F. Maloney as administrator pendente lite of the Estate of Anna S. Harrison, answered, claiming the fund. Defendant Margaret Harrison as an individual answered claiming one-half the fund, and as executrix of the Estate of Anna S. Harrison answered claiming one-half the fund.

The trial resulted in a judgment in favor of defendants Margaret Harrison and the Estate of Anna S. Harrison. Defendant John J. Dowling Realty Company appeals.

The principal note of $6,000 and six interest notes of $180 each were executed by plaintiffs, Elmer S. Moore and Winifred Moore, on September 22, 1932. The principal note was made payable three years after date. The interest notes were payable semi-annually. The notes were made payable to V. M. Reilly. They were endorsed by her in blank without recourse and delivered to Margaret Harrison and Anna S. Harrison. The principal note and interest notes were given in consideration of a loan of $6,000 made by Margaret Harrison and Anna S. Harrison to Elmer S. Moore and Winifred Moore. Defendant W. S. Steele is the trustee in the deed of trust executed by the Moores to secure the payment of the notes. The interest notes were fully paid. On September 22, 1935, the Harrisons extended the principal note to September 22, 1938, and the Moores executed six interest notes each for $180 payable to V. M. Reilly semi-annually. The interest notes were endorsed by V. M. Reilly in blank without recourse. The interest notes were fully paid. On September 22, 1938, the Harrisons extended the principal note to September 22, 1941, and the Moores executed six interest notes each for $180 payable to V. M. Reilly semi-annually. The interest notes were endorsed by V. M. Reilly in blank without recourse. The extension of the principal note was evidenced by an unsigned memorandum attached to the note. Three of the interest notes were paid by the Moores to the Harrisons.

On December 27, 1940, the principal note and three unpaid interest notes were purchased by John J. Dowling Realty Company for $4,500. At that time one of the interest notes was three months overdue. The overdue interest note was paid by the Moores to John J. Dowling Realty Company. So was the interest note which fell due March 22, 1941. Anna S. Harrison died on May 28, 1941. The principal note and the remaining interest note fell due on September 22, 1941, and, as already said, remained due and unpaid on September 23, 1941, when this action was commenced.

Margaret Harrison and Anna S. Harrison were sisters. They resided at 6529 Chamberlain Avenue, one block south of the Moore property, in University City. They had a safe deposit box in the Delmar Bank in University City. The notes and deed of trust involved in this suit with other securities and $2,000 in cash were deposited in this box.

William J. Finnegan resided with his family in Dallas, Texas. He was a nephew of Margaret and Anna S. Harrison. In 1939, he came to the home of the Harrisons and resided there for several months, leaving his family in Texas. On November 15, 1939, pursuant to some arrangement made between the Harrisons and Finnegan, the contents of the safe deposit box were taken from the box and an inventory made of them. This was done in the presence of three witnesses besides Finnegan and Margaret Harrison. Finnegan unlocked the box. After the inventory was made of the contents of the box they were returned to the box. Finnegan kept one key and Margaret kept the other. She testified that she gave him the key so that he could get cash from the box to provide for the immediate needs of the home. Afterwards, in February 1940, Margaret Harrison and Anna S. Harrison each executed a power of attorney to William J. Finnegan giving him broad powers in the management of their affairs and the disposition of their property. At the time of these transactions Margaret and Anna S. Harrison were old and infirm. Anna was sick and in bed most of the time. She was unable to leave the home.

Some time after Anna's death, Margaret made and filed in the office of the recorder of deeds her revocation of the power of attorney given to William J. Finnegan. She testified that, when, after Anna's death, she opened the safe deposit box, she, to her surprise, found nothing there but an old sugar sack. At that time Finnegan had gone back to his home in Dallas, Texas. He died prior to the time of the trial.

That Finnegan got possession of the notes and deed of trust, and other securities, contained in the safe deposit box, by fraudulent practices, and wrongfully converted them to his own use, does not appear to be questioned.

After her sister's death Margaret Harrison engaged the services of attorney Leo F. Laughren, who endeavored by correspondence with Finnegan to procure the return of the notes and deed of trust, but without success.

John J. Dowling was president of the John J. Dowling Realty Company. All the stock of the company was owned by John J. Dowling, his son, John J. Dowling, Jr., and his two daughters, Helen G. and Mary Jane Dowling. The office of the Dowling Company was at 1004 Chestnut Street, St. Louis.

On December 18, 1940, William T. Whitehurst, an attorney of Dallas, Texas, forwarded the notes and deed of trust in question to Judge John W. Calhoun, an attorney, with his office at 705 Olive Street, requesting Judge Calhoun to find a purchaser for the notes. He at once took the notes and deed of trust to the office of the Dowling Company and asked Mr. Dowling if he would be interested either in purchasing or selling the notes. He told Mr. Dowling that the notes and deed of trust had come to him from attorney Whitehurst of Dallas, Texas, and that a sale was wanted before Christmas. He left the notes and deed of trust with Mr. Dowling so that he would have an opportunity to examine them and also to examine the property covered by the deed of trust. Mr. Dowling examined the notes and deed of trust and the property and made an offer to Judge Calhoun of $4,000 for the notes. Judge Calhoun submitted the offer to attorney Whitehurst at Dallas and the offer was rejected. Mr. Dowling then made an offer of $4,250, and this offer was submitted and rejected. Mr. Dowling then made an offer of $4,500, which was submitted and accepted. The sale and transfer of the notes at the price of $4,500 was consummated on December 27, 1940. A cashier's check was obtained for $4,500, the purchase price, and was forwarded to attorney Whitehurst on that date.

Mr. Dowling at the time he purchased the notes knew nothing of the power of attorney executed by the Harrisons to Finnegan.

The testimony shows that either on Monday December 23rd or on Monday December 30th attorney Laughren went to the office of the Dowling Company and notified Mr. Dowling that a man by the name of Finnegan had wrongful possession of the deed of trust and notes and that he stood in the position of a thief, and that the purchaser of the notes would have no better title than the person he purchased them from, or words to that...