Morgan v. York

• Decision Date: 03 March 1936
• Docket Number: No. 5141.,5141.
• Citation: 91 S.W.2d 244
• Court: Missouri Court of Appeals
• Parties: MORGAN et al. v. YORK (BAER, Intervener).

91 S.W.2d 244

MORGAN et al. v. YORK (BAER, Intervener).

No. 5141.

Springfield Court of Appeals. Missouri.

March 3, 1936.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be reported in State Reports."

Suit by Will S. Morgan and another against Albert York, trustee, wherein Katherine Baer intervened. From an adverse judgment, the plaintiffs appeal.

Affirmed.

John J. Wolfe, of Joplin, and Lon Kelley, of Pineville, for appellants.

Grover C. James, of Joplin, and Roy W. Crimm, of Kansas City, for respondents.

ALLEN, Presiding Judge.

This court at its March term, 1933, transferred this cause to the Supreme Court, on the theory that title to real estate was involved, which court held as follows: That "plaintiff's title was not questioned, nor was any attack made upon the validity of the deed of trust. Primarily the pleadings seek the judgment of the court as to whether or not the deed of trust, admittedly valid in its inception, is still a lien; that was the sole matter at issue and the only thing determined and adjudged by the trial court. It follows that the cause must be transferred to the Springfield Court of Appeals," which was accordingly done on November 12, 1935. (Mo.Sup.) 88 S.W.(2d) 146, 150.

Appellant's petition alleges that on March 9, 1925, Charles Dacy and wife purchased a tract of approximately 160 acres of land in McDonald county, Mo., from Henry C. Prater and wife, and in part payment of the purchase price Dacy and wife executed their three promissory notes to Prater and wife for the aggregate sum of $6,500, and secured the payment of the same by a first deed of trust, covering the entire tract; that the first note of said series of three notes was for $2,000, payable in one year, after date, or on March 9, 1926; the second note was for $2,000, due three years after date or on March 9, 1928; and the third note was for $2,500.00, due four years after date, or on March 9, 1929. The said deed of trust was filed and recorded in the recorder of deeds office at Pineville, McDonald county, Mo., on the 10th day of March, 1925.

Soon thereafter Dacy caused a part of said land to be platted as "Prater's first subdivision." In 1926 Dacy and wife conveyed all of the lots in said subdivision to Dacy Agency & Investment Company, a corporation, with its principal office at Joplin, Mo., and also conveyed to the same corporation a miscellaneous tract, estimated at about 57 acres, which was a part of the original Prater tract.

On August 18, 1926, Dacy and wife conveyed to one William S. Hendrix all of the land originally acquired from the Praters, and described in the deed of trust securing the three notes above mentioned, excepting therefrom, however, the lots and miscellaneous tract theretofore conveyed by Dacy and wife to the Dacy Agency & Investment Company.

The deed to Hendrix recited that it was subject to the lien of the first deed of trust given to Prater, and that Hendrix assumed and agreed to pay the indebtedness secured by the said $6,500 deed of trust to Prater; and the petition herein alleges that although the grantee named in the said deed was William S. Hendrix, that the conveyance was made at the request of J. A. Kelley. That said Hendrix was a nephew of Kelley, and that the conveyance was made to Hendrix, his heirs and assigns; that although Kelley was not named in the said deed, as grantee, or otherwise, that he thereby became bound for the payment of and assumed the indebtedness evidenced by the $6,500 deed of trust above mentioned.

The case was sent on change of venue to the circuit court of Jasper county, where on May 28, 1927, a decree was rendered in receivership proceedings against Dacy Agency & Investment Company, in which the plaintiff Morgan was declared to be the owner of the lots and miscellaneous 57-acre tract theretofore conveyed by Dacy and wife to Dacy Agency & Investment Company; that thereafter on August 20, 1927, Kelley alleged to be the actual owner of the title to the said Prater land (excepting the lots and miscellaneous tract claimed by Morgan under the receivership proceedings), although the legal title was held by Hendrix, who "purchased and took over for a valuable consideration by him (Kelley) paid, the three promissory notes aggregating the sum of $6,500.00 from the said Henry C. Prater, the payee named therein, and appellant Resler, for the purpose of paying off the said notes in the deed of trust mentioned, and to satisfy the said mortgage indebtedness, and the lien thereof, against the said described land"; that thereafter on said August 20, 1927, Kelley "acting by and through the plaintiff Resler, his then agent," caused the said deed of trust and the said notes to be presented to the recorder of deeds and a partial release made as to certain lots in said Prater's subdivision; that Kelley neglected, failed, and refused to cause the lien of said deed of trust to be canceled and released as to the remainder of the property described in the Prater deed of trust and wrongfully and fraudulently undertook to negotiate the second and third of the notes secured by said deed of trust by transferring the same to intervener, Katherine Baer, who claiming to be the lawful owner and holder of the said two notes had directed the defendant York, as trustee in the Prater deed of trust, to proceed to foreclose said deed of trust by publication of foreclosure notice in a Pineville newspaper, alleging "that plaintiff, Resler, holds a deed of trust dated June 28, 1928, executed by plaintiff, Morgan and wife, covering certain lots in said Sub-Division, and the said miscellaneous fifty-seven acre tract; that Kelley and Intervenor had no right, title or interest in or to the property in question, and that the lien of the deed of trust, to York, trustee, for defendant Katherine Baer, be cancelled and York restrained from proceeding to foreclose same, and that the cloud on the title created by said deed of trust be removed."

The answer of defendant York admits that he is the trustee named in the $6,500 deed of trust given to Prater and that he had been instructed to begin foreclosure proceedings thereunder at the time the temporary restraining order was issued against him and that said sale was not made on account thereof.

The answer and intervening petition of Katherine Baer alleged that plaintiffs Morgan and Resler have no interest in the property in controversy and that intervener is an innocent purchaser and holder of the second and third notes of said series of three notes, theretofore executed by Dacy and wife to Prater, and secured by said deed of trust; that is to say, the note for $2,000 due March 9, 1928, and the note for $2,500 due March 9, 1929, and that the mortgage, if any, held by plaintiff Resler be declared second or subsequent to the first deed of trust held by intervener and praying that the said indebtedness held by her be declared as a first and prior lien covering all of the property described in the first deed of trust given to Prater, and that the same be foreclosed.

The reply to the intervening petition of Katherine Baer was a general denial.

By stipulation this cause was transferred to the Newton county circuit court and after a trial to said court, resulting in a judgment for plaintiff and during the said term, the court of its own motion set aside said judgment and took the case back under further advisement, and later again rendered judgment for plaintiff, but immediately and on the said day sustained defendant's and intervener's motion for a new trial. The cause, by stipulation, as hereinbefore stated, of all the parties was thereafter transferred to the Jasper county circuit court, division 1, where it was tried to the court, Hon. R. H. Davis, judge.

At the trial it was admitted that said Joseph A. Kelley died on January 13, 1929, shortly after the filing of this suit.

Plaintiff introduced in evidence, over objections, the warranty deed from the Dacys, as grantors, to William S. Hendrix, as grantee, dated August 18, 1926, the same being the warranty deed referred to in plaintiff's petition. The name of Joseph A. Kelley does not appear therein as grantee, or in any other manner, William S. Hendrix being the sole grantee. The deed recited that the property is subject to the deed of trust to York, trustee, to secure the Prater notes, and "which notes and indebtedness said grantee and assigns herein assume and agree to pay."

C. D. Resler testified that on August 20, 1927, he had possession of the notes and deed of trust mentioned. A certified copy of an attempted release of same after certain objections thereto was admitted in evidence. It purports to show that on August 20, 1927, at least the two notes were presented to the recorder of deeds, but not canceled. The deed of trust was released as to lot 190; also a release of certain described 110 lots, including lot 190, with no date thereof. Resler claimed that after he made this release "he sold those notes," evidently meaning the two notes amounting to $4,500, or turned them over to Joseph A. Kelley, sometimes referred to as J. A. Kelley; that he delivered them to Kelley; that it might have been on the evening of the same day. He also stated that he held a $4,000 note, dated June 28, 1928, from his coplaintiff, Morgan and wife, secured by a mortgage on...