National Fire Ins. Co. v. Munger

• Decision Date: 24 May 1937
• Docket Number: No. 18937.,18937.
• Citation: 106 S.W.2d 10
• Parties: NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. MUNGER et al.
• Court: Missouri Court of Appeals

106 S.W.2d 10

NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. MUNGER et al.

No. 18937.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

Actions, consolidated for trial, by Richard J. Munger against the National Fire Insurance Company of Hartford, Connecticut, and by such company against Richard J. Munger and others, in which defendant Munger filed a cross-action. From a judgment for the insurance company, defendants Munger and others appeal.

Affirmed.

Henri L. Warren, Wm. B. Teasdale, and Wm. A. Robertson, all of Kansas City, for appellants.

Borders, Borders & Warrick, of Kansas City, for respondent.

SHAIN, Presiding Judge.

Richard J. Munger, appellant herein, on May 3, 1935, filed suit in Bates county against the respondent herein. The purpose of this suit was to collect for loss by fire based upon a fire insurance policy issued to Richard J. Munger by the respondent herein and numbered 552769.

The respondent herein on May 3, 1935, filed a suit in Jackson county, Mo., circuit court seeking to collect for an alleged unpaid balance due upon the real estate upon which the fire loss involved in the Bates county suit occurred, and seeking to foreclose and have said real estate sold and the proceeds applied to the payment of debt and costs, balance if any to whom the court found same due.

By agreement of parties the two aforesaid suits were consolidated and tried in the circuit court of Jackson county. Before trial in the circuit court of Jackson county, Mo., the following stipulation was entered into and filed and made a part of the record in this cause, to wit:

"Stipulation.

"Whereas, there is pending in the above entitled courts certain litigation between the parties above named, arising out of the issuance of a fire insurance policy by the National Fire Insurance Company of Hartford, a corporation, and a first mortgage note secured by deed of trust on the lands described in said fire insurance policy, which note was purchased by said Fire Insurance Company; and

"Whereas, it is of advantage that all of the issues between the parties arising out of the issuance of such fire insurance policy and the purchase of such first mortgage note be determined in one proceeding.

"Now, therefore, it is agreed by and between the parties:

"First: That the partial statement of facts attached to and made a part of this stipulation is an agreed statement of facts with respect to the matters therein stated; Provided however, that there is no agreement as to the legal effect of such facts and exhibits, and the court shall draw its own inference from the facts and exhibits and said agreed statement of facts shall be offered and received subject to all objections as to relevancy, materiality or competency.

"Second: It is agreed that the parties may offer in evidence subject to all objections as to competency, relevancy or materiality, all or any part of the pleadings in either of the above entitled causes, all or any part of the depositions taken in either of the above entitled causes, together with all or any part of the transcript of the evidence taken in the case of Richard J. Munger vs. National Fire Insurance Company of Hartford, pending in the Circuit Court of Bates County, Missouri, with the same force and effect as though taken in this cause, and any or all exhibits therein identified, and all such evidence shall be considered as if the witnesses were present in court and identified said exhibits. No other testimony shall be heard or offered unless requested by the Court; and it is further agreed that each of the parties shall have the right to object to or challenge the competency, relevancy, materiality or probative effect of any or all of such evidence and testimony as contained in said depositions or transcript of evidence or agreed statement of facts or exhibits; such evidence and partial agreed statement of facts and exhibits shall be promptly submitted to the Circuit Court of Jackson County, Missouri, in the case entitled `National Fire Insurance Company of Hartford, a corporation, plaintiff, vs. Richard J. Munger, et al., defendants, No. 440076,' upon appropriate pleadings that will raise all issues in controversy between the parties.

"Third: It is agreed that the costs in the action between the parties pending in Bates County, Missouri, shall follow the costs in these proceedings. It is further agreed that upon final judgment being rendered in this cause, Richard J. Munger shall dismiss or cause to be dismissed the action entitled, `Richard J. Munger, plaintiff, vs. National Fire Insurance Company, defendant,' pending in the Circuit Court of Bates County, Missouri, Docket No. 29199.

"Fourth: It is agreed that this is an action in equity in which the parties purpose to submit all controversies, whether legal or equitable, existing between them for adjudication.

"Fifth: That the judgment of the Circuit Court of Jackson County, Missouri, in these proceedings shall be rendered in the same manner as if evidence had been fully presented to the Court, and all rights for motions for a new trial, arrest of judgment, appeal, and all similar rights are preserved to the parties.

                  "Dated this 22nd day of June, 1936
                       "Warren and Teasdale
                          "Attorneys for Richard J
                            Munger
                       "Borders, Borders and Warrick
                          "Attorneys for National Fire
                            Insurance Co.
                

"I. That the plaintiff is the owner and holder of the first mortgage real estate bond described in plaintiff's second amended petition; that according to the tenor thereof, the unpaid balance on said first mortgage real estate bond is the sum of Two Thousand, Four Hundred Fifty-eight and 97-100 Dollars ($2,458.97) and interest thereon from July 26, 1934.

"II. That to secure the payment of said first mortgage real estate bond the makers of said bond, being the then owners of the real estate described in plaintiff's second amended petition, conveyed to E. F. Swinney, in trust, by their certain deed of trust dated December 12, 1922, the real estate described in plaintiff's second amended petition, which real estate is described as follows, to-wit: The Southeast Quarter (SE¼) of the Southeast Quarter (SE¼) of Section 12, Township 49, Range 32, Jackson County, Missouri; and said deed of trust was duly recorded in the office of the Recorder of Deeds in and for Jackson County, Missouri, at Independence, on December 12, 1922, in Book 412 at page 573, such deed of trust being the same deed of trust described in plaintiff's second amended petition.

"III. That the time of payment of said first mortgage real estate bond was by endorsement thereon extended to December 12, 1927, and by subsequent endorsement extended to December 12, 1931, and on or about December 12, 1931 the time of payment of said first mortgage real estate bond was extended to December 12, 1932, and on December 29, 1932, the time of payment of said first mortgage real estate bond was further extended by a certain extension agreement dated as of that date, executed by Richard J. Munger, one of the defendants herein, who was at that time the then owner of said real estate hereinabove described; that by said extension agreement last above mentioned the time of payment of said first mortgage real estate bond was extended as follows: Two Hundred and Fifty Dollars ($250.00) to become due June 12, 1933, and Eight Thousand Dollars ($8,000.00) to become due December 12, 1933, and the said defendant, Richard J. Munger, by said extension agreement, assumed and agreed to pay said first mortgage real estate bond; that such extension agreement is the same extension agreement described in plaintiff's second amended petition.

"IV. Subsequent to the 15th day of November, 1933, M. Grace Gaume defaulted in the payments due on a certain note secured by the second deed of trust dated August 18, 1933, recorded in Book 582, page 378, in the office of the Recorder of Deeds for Jackson County, Missouri, at Independence, and defendant, Richard J. Munger, caused the deed of trust to be foreclosed and at such foreclosure sale on February 16, 1934, became the purchaser of the title conveyed by the trustee of the property described in said deed of trust, taking the title conveyed by the trustee in the name of Richard J. Munger; that Richard J. Munger has made no conveyances of said tract subsequent to said date and is the owner of the same at this time subject only to the lien, if any, of the first mortgage deed of trust described in paragraph II. hereof.

"V. That on November 13, 1933, the defendant, M. Grace Gaume, conveyed to the defendant, Nina Maxwell a portion of said real estate described in plaintiff's second amended petition, which said parcel so conveyed is particularly described as follows: The South Three Hundred Sixty-eight (S. 368) feet of the North Five Hundred Thirty-three (N. 533) feet of the Southeast Quarter (SE¼) of the Southeast Quarter (SE¼) of Section Twelve (12), Township Forty-nine (49), Range Thirty-two (32), Jackson County, Missouri, and the South Six Hundred Twenty-two (S. 622) feet of the South-east Quarter (SE¼) of the Southeast Quarter (SE¼) of Section Twelve (12), Township Forty-nine (49), Range Thirty-two (32), Jackson County, Missouri, except the South Twenty (S. 20) feet therefor for a road.

"That the said two-story dwelling house described in the policy of insurance issued by the plaintiff was not located on the portion of said premises so conveyed to the defendant, Nina Maxwell."

It is stated in appellant's brief, and we conclude that same is true, that:

"Until August 18, 1933, there was no contention between the parties. Appellant was the owner of the property subject to an $8,000.00 first mortgage note and the policy was in full force and effect with standard mortgage clause (with contribution) reciting that the loss was payable to The First National Bank, the...