Moore v. John J. Dowling Realty Co.

• Decision Date: 08 December 1942
• Docket Number: No. 26082.,26082.
• Citation: 166 S.W.2d 238
• Parties: MOORE et ux. v. JOHN J. DOWLING REALTY CO. et al.
• Court: Missouri Court of Appeals

166 S.W.2d 238

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

No. 26082.

St. Louis Court of Appeals. Missouri.

December 8, 1942.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action in the nature of a bill of interpleader by Elmer S. Moore and Winifred Moore, his wife, against John J. Dowling Realty Company, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling, and Mary Jane Dowling, as officers of John J. Dowling Realty Company, and others. From a decree sustaining the bill of interpleader, the named defendants appeal.

Affirmed.

John C. Kappel, Jr., and Walter S. Berkman, both of St. Louis, George F. Heege, of Clayton, and J. F. Maloney and Leo Laughren, both of St. Louis, for appellants.

Wm. J. Becker, of Clayton, for respondents.

HUGHES, Presiding Judge.

On September 23, 1941, plaintiffs (respondents here) filed in the Circuit Court of St. Louis County an action in the nature of a bill of interpleader, whereby they alleged that all of the defendants claim some right, title and interest in and to a certain deed of trust executed by plaintiffs on the 22nd day of September, 1932, and given to secure a principal indebtedness in the sum of $6,000 and also securing $180 accrued interest evidenced by an interest note executed on the 22nd day of September, 1938, due and payable on the 22nd day of September, 1941, the total indebtedness of plaintiffs being the sum of $6,180. That defendant W. S. Steele is the trustee named in said deed of trust. The plaintiffs then alleged that Margaret Harrison as an individual and as executrix of the estate of Anna S. Harrison, deceased, claims that she and the said estate each own an undivided one-half interest in and to said deed of trust and notes, by purchase thereof from W. S. Steele in good faith and for value. That said Margaret Harrison claims that the defendant John J. Dowling Realty Company, a corporation, and John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling as officers of John J. Dowling Realty Company have the deed of trust and the notes secured thereby in their possession and under their control, and have concealed or are otherwise wrongfully withholding the same from the true owners thereof, and that said Realty Company claims to have purchased the same from one William T. Whitehurst, through the office of Judge John W. Calhoun, a practicing attorney, in good faith and for value. That an action to discover and recover said deed of trust and notes as assets was instituted in the Probate Court of St. Louis County on February 4, 1941, In the Matter of the Estate of Anna S. Harrison, Deceased, by Margaret Harrison as Executrix of said estate against John J. Dowling Realty Company, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling as Officers of John J. Dowling Realty Company which resulted in a probate court judgment in favor of said estate. That said defendants perfected an appeal from said judgment, gave appeal bond, and said appeal is now pending and undisposed of in said circuit court, and by virtue of said appeal and appeal bond the John J. Dowling Realty Company retains possession of said deed of trust and notes, and on or before the 22nd day of September, 1941, demanded of plaintiffs the payment of said notes aggregating $6,180. That the estate of Anna S. Harrison and Margaret Harrison have notified plaintiffs of their conflicting claim, and that they would take any and all steps which might be necessary at law or in equity to enforce a lien against plaintiffs' property in their favor. That plaintiffs are willing, ready and able to pay said notes to the true and lawful owners, and that since September 22, 1941, the date the notes were due, the title to plaintiffs' property is in jeopardy and they are in danger of foreclosure proceedings by the trustee under the terms of the deed of trust. That the conflicting and litigating claimants should be required to interplead between themselves for said sum of $6,180, and the lien of the deed of trust be released upon plaintiffs depositing $6,180 with the clerk of the court. The prayer of the bill is, (1) that no interest be permitted to accumulate against plaintiffs from and after September 22, 1941, (2) that the defendants be required to show cause, (a) why the Realty Company should not be required to deposit the deed of trust and notes with the clerk of the court, and (b) why plaintiffs should not be permitted to deposit the sum of $6180 with the clerk in full and complete satisfaction of the debt and extinguishment of the lien, and (c) why the defendants should not be restrained from taking any steps to enforce a lien by virtue of the said notes and deed of trust, and (3) that upon a hearing the court order the Realty Company to deposit the deed of trust and notes with the clerk, and (4) that conditioned upon the deposit of $6180 with the clerk by plaintiffs, the clerk be ordered to deliver the deed of trust and notes to plaintiffs for release and cancellation and the same be decreed fully satisfied of record, and (5) that a reasonable fee be allowed plaintiffs' attorney and be taxed as costs and paid out of said fund, and (6) that plaintiffs filing fee of $4 be returned to plaintiffs and taxed as costs, and (7) that plaintiffs be discharged from all further liability to any of the defendants.

On September 23, 1941, the circuit court issued its order to the defendants to show cause, if any they had, why plaintiffs' bill of interpleader should not be granted.

On September 30, 1941, John F. Maloney, as administrator pendente lite of the estate of Anna S. Harrison, deceased, was joined as a party defendant.

The separate return of Margaret Harrison, after admission of the matters plead by plaintiffs, alleged that the notes mentioned in the bill of interpleader were owned by herself and Anna S. Harrison, deceased, equally, and that the John J. Dowling Realty Company, a corporation, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling had no lawful interest or ownership in or to the notes or deed of trust, and that the interpleader be granted.

The separate return of John F. Maloney, administrator pendente lite of the estate of Anna S. Harrison, deceased, alleged that the notes and deed of trust were owned by Anna S. Harrison, deceased, she having acquired the same by purchase, for value and in good faith, from W. S. Steele, and that he, as administrator pendente lite, was entitled to the possession of them or the proceeds therefrom, and that John J. Dowling Realty Company, a corporation, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling have no lawful interest or ownership therein, and that the interpleader be granted.

The separate return of John J. Dowling Realty Company, a corporation, John J. Dowling, John J. Dowling, Jr., Helen G. Dowling and Mary Jane Dowling alleged that the John J. Dowling Realty Company purchased the notes and deed of trust and is the legal and rightful holder and owner of them, and denying that either Margaret Harrison or the estate of Anna S. Harrison, deceased, has any claim, right, title or interest in said notes or deed of trust. This return further alleged the proceedings in the probate court and the appeal therefrom and the pendency of that matter in the circuit court, and that said action will be decisive of the question sought herein and full and complete protection to the plaintiffs.

At the hearing in the circuit court there was no dispute as to the actual facts. The records and files of the probate court in the proceedings to discover assets were offered in evidence, showing the disputed claims of ownership of the deed of trust and notes, and resulting in a verdict and judgment that they were the property of the estate of Anna S. Harrison, deceased, and further showing an appeal from that judgment to the circuit court and the posting of an appeal bond in the sum of $9,000.

John F. Maloney testified that as administrator pendente lite of the estate of Anna S. Harrison, deceased, he was claiming the whole interest in the deed of trust and notes in controversy.

Elmer S. Moore testified that he had borrowed the $6,000 on September 22, 1932; that the loan was renewed on September 22, 1935, and renewed again on September 22, 1938, for a period of three years. That on September 22, 1941, the principle note became due, and he desired to pay the entire principal and the $180 interest note that was due and owing. That before September 22, 1941, he received a notice from the John J. Dowling Realty Company, which was identified as exhibit K, and was a notice stating, "Your note due September 22, for $6180.00" and "Notes must be paid promptly". That he had a talk with Mr. Laughren whom he knew represented some of the parties in the probate court; he (Mr. Laughren) represented the Harrison family; that Mr. Laughren cautioned him to pay the money to the right person; that if he paid the money to Mr. Dowling, he (Mr. Laughren) would look to him for the money; Mr. Laughren also said "that I would have to pay the money over if I didn't pay it to the right party". "Mr. Laughren showed me some law books where people paid the money to the wrong parties and they were sued and had to pay it again."

Jack Dean testified that he was in the real estate...