Neeley v. Bank of Independence

• Decision Date: 06 November 1905
• Citation: 89 S.W. 907,114 Mo.App. 467
• Parties: MYRTLE M. NEELEY, Appellant, v. BANK OF INDEPENDENCE et al., Respondents
• Court: Kansas Court of Appeals

89 S.W. 907

114 Mo.App. 467

MYRTLE M. NEELEY, Appellant, v. BANK OF INDEPENDENCE et al., Respondents

Court of Appeals of Missouri, Kansas City

November 6, 1905

June 26, 1905.

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Paxton & Rose for appellant.

(1) The injunction ought to have been made perpetual. Parks v Bank, 97 Mo. 130; Pawley v. Vogel, 42 Mo. 291 303; R. S. 1899, sec. 3649. (2) The title of the real estate is not involved and the appeal is to this court. State v Court of Appeals, 67 Mo. 199.

J Allen Prewitt for respondent.

(1) If the title to real estate is not the issue in this case then plaintiff's petition certainly states no cause of action. If the title to real estate is in issue then plaintiff is pursuing the wrong remedy. Plaintiff cannot try title by injunction. Echelkamp v. Schrader, 45 Mo. 505; 10 Ency. Pl. and Prac., 887; Lytle v. James, 98 Mo.App. 337; Watterman v. Johnson, 49 Mo. 410; Smith v. Jameson, 91 Mo. 13. (2) On the record and evidence John T. Neely had an interest in the land subject to execution at time of defendant's judgment. R. S. 1899, sec. 317. (3) Plaintiff's petition fails to state a good cause of action in this: First, she neither pleads nor proves that her husband had no interest in the real estate subject to execution; second, she neither pleads nor proves that her husband held title in trust for her and cannot do so in a simple injunction; third, she neither pleads nor proves that the deed was taken in her husband's name under any contract whatever for her use and benefit; fourth, she arbitrarily elects or assumes that her husband held title for her and on this violent assumption bases her right to a judgment on the pleadings in this case and thus she is attempting to deprive defendant of the right to test the merits of her arbitrary assumption. Else she forces defendant to try title by injunction. (4) Plaintiff has an adequate remedy at law. R. S. 1899, sec. 650; Ball v. Woolfolk, 175 Mo. 285.

OPINION

BROADDUS, P. J.

This is a proceeding to restrain defendant bank and the sheriff of the county from selling under execution certain real property situated in Blue Springs, Missouri.

The facts are that, on August 13, 1902, one John E. Barnes conveyed by general warranty deed the property in controversy to John Neeley, the husband of plaintiff. The consideration for the property was $ 500, of which about $ 200 was paid in cash and a note was given for the residue which included also a debt of $ 28.75 which Neeley owed Barnes, making the total amount of the same $ 328.75, which note was signed by plaintiff and her said husband. A deed of trust on the property was executed by the husband and wife as security for the payment of the note. The property was purchased at the suggestion of plaintiff's grandfather, Lewis Gore, and the cash payment was made by the sale of a horse for $ 140, the property of plaintiff, and money furnished by said Gore, but the deed, it is alleged, was made to the husband, John Neeley, by inadvertence of the scrivener. When the note became due, neither plaintiff nor her husband had any means with which to pay it. Lewis Gore paid the note and had the deed of trust entered satisfied on the records. Subsequently, on the 10th day of July, 1903, the plaintiff and her husband conveyed the property to Lewis Gore, who on the next day conveyed it to plaintiff. On the 18th of May, 1903, the defendant bank obtained a judgment before a justice of the peace against said John Neeley for the sum of $ 135; and on June 26, next thereafter, filed a transcript thereof in the office of the clerk of the circuit court of the county; and thereafter sued out execution thereon, returnable to the December term of the circuit court. On October 12, following, the defendant sheriff levied said execution on the property in question as the property of said John Neeley and had advertised the same for sale when he was restrained by these proceedings.

The evidence showed that John Neeley paid no part of the consideration for the property; and that Lewis Gore paid for it with his own money and the $ 140 he got from the sale of plaintiff's horse. Lewis Gore, an old man then 82 years of age, who negotiated for the purchase of the land from Barnes, testified as follows in part: "I didn't mean to give it as much to John T. Neeley as to Mrs. Neeley. I meant to give Myrtle (referring to plaintiff) a home. I didn't request them to make the deed to Myrtle because I didn't take it into consideration. I didn't take it into consideration particularly about John getting away with it. I meant it for 'Mert's' benefit. I wouldn't have given John nothing if he had not had 'Mert'. As to being just as willing to...