Myers v. Hale

• Decision Date: 30 March 1885
• Citation: 17 Mo.App. 204
• Parties: OSCAR F. MYERS, Plaintiff in Error, v. JOSIAH HALE and JOHN C. HOWARD, Defendants in Error.
• Court: Kansas Court of Appeals

17 Mo.App. 204

OSCAR F. MYERS, Plaintiff in Error, v. JOSIAH HALE and JOHN C. HOWARD, Defendants in Error.

Court of Appeals of Missouri, Kansas City.

March 30, 1885

ERROR to Jackson Circuit Court, HON. F. M. BLACK, Judge.

Affirmed.

Statement of the case by the court.

The petition sets forth that on the 6th day of November, 1873 and for a long time prior thereto, Richard L. Edgeworth and Margaret Edgeworth were the owners in fee of certain described real estate. That Richard L. Edgeworth, and William Edgeworth, the husband of said Margaret, were in lawful possession of said lands, cultivating the same; that on the 6th of November, 1873, said Richard L., William, and Margaret were indebted to William E. Lee, in the sum of $4,158 evidenced by their seven equal promissory notes.

That to secure the payment of said notes, Richard L., Margaret, and William Edgeworth executed, acknowledged and delivered to said Lee, on the 6th November, 1873, their deed of trust upon three-fourths of all the crops of all kinds raised or to be raised upon said real estate; that said deed of trust was filed for record in the recorder's office for Jackson county, on the 11th December, 1873, and was on that day duly recorded; that prior to 1st February, 1875, said Lee, for valuable consideration, sold, endorsed, and transferred said notes to the plaintiff, Myers; that plaintiff has continued to hold and own said notes; that three of said notes, and the interest on all of them, were, on March 1, 1877, due, and are now due and unpaid; that Richard L. and William Edgeworth did, during the summer and crop season of 1876, by farming and cultivating said lands, grow, produce, and gather upon said lands a crop of corn aggregating 2,400 bushels; that prior to March 1, 1877, said deed of trust became absolute and plaintiff had become and was the legal owner, and entitled to the immediate possession of the three-fourths of said 2,400 bushels of corn, the crop so raised, produced, and gathered on said lands; that defendants, well knowing the premises, negligently and wilfully disregarding plaintiff's rights, did, about March 24, 1877, and without the consent, permission, or knowledge of plaintiff take, receive, dispose of, and convert to their own use 1,300 bushels of said three-fourths of said crop of corn so raised, produced, and gathered upon said lands, of the value of $377; that plaintiff had at divers times demanded the return of the corn, which defendants refused.

The answer--First. Denies each and every material allegation of petition, not expressly hereinafter admitted.

Second. Admits that on November 6, 1873, Richard L., Margaret, and William Edgeworth executed a deed of trust in the nature of a mortgage upon three-fourths of all crops of all kinds raised upon the lands described in petition.

Third. Alleges that the deed of trust so executed by the Edgeworths was for the purpose and with the intent and design to defraud, hinder, or delay the creditors of Richard L. and William Edgeworth, and create in them a secret trust; that plaintiff and Lee had full knowledge.

The reply was a general denial.

The case was submitted to the court without a jury. The court found for defendants, and the plaintiff has brought the case here by a writ of error.

Among other evidence introduced by plaintiff was the deed of trust made by William, Margaret, and Richard L. Edgeworth to J. A. Shaw, dated 6th November, 1873, acknowledged and certified, filed for record in recorder's office, Jackson county, at Independence, December 11, 1873, whereby they conveyed to Shaw three-fourths of all crops of all kinds raised or to be raised on said lands, and provides that in case the grantors neglect or refuse to cultivate land and raise crop, that trustee may lease premises and put tenant in possession, and pay to Lee proceeds from rentals; made to secure six of the notes described in first deed of trust, maturing March 1, 1874, and annually thereafter to March 1, 1880, inclusive. This deed of trust contained power of sale in case of default.

Upon this deed of trust the plaintiff relied to establish his title to the corn, alleged by him in his petition, to have been converted by defendants.

The plaintiff was a witness for himself, and among other things testified as follows:

" The crop of 1876 is the one in dispute. I was very anxious about this crop, as at this time I owned the notes made by Edgeworth to Lee; and the administrator, Carter, who held the $400 note and one of the Edgeworth notes as collateral, was pressing payment and threatening to sell under the deed of trust. I did not have the money to pay the $400 note, and often during the winter urged John Edgeworth to gather the corn so that I could sell it. Edgeworth said the mud was too bad, and that he could not gather the corn as requested. As soon as I learned that they had begun to haul the corn I sent the trustee under the new deed of trust to take charge of it. He took possession of all that was left, sold it, and through Proudfit sold it to the defendant in this suit, and sent me $136. By agreement with Edgeworths this was paid on the $400 note. I was anxious to pay the $400 note, so as to get up the collateral, and thus control the sale under deed of trust, to save as much of my debt as possible."

The court refused all the declarations of law asked by the plaintiff and the defendants, and gave of its own motion a single declaration of law. It is not necessary to refer further to the declarations of law refused or given, than to say that the defendants, in one presented by them, asked the court to declare that under the pleadings and evidence in this case the court should find for them.

BOGGESS & MOORE for the plaintiff in error.

I. By making the declaration of law which the court did of its own motion, the court necessarily found all the issues of fact for the plaintiff.-- Hamilton v. Boggess, 63 Mo. 233.

II. The court held the mortgage as to crops to be planted and grown after its execution, though duly acknowledged and recorded void as to third persons, especially as to those who had no actual...