New Age Federal Sav. & Loan Ass'n v. Miller, 54659
| Decision Date | 14 December 1970 |
| Docket Number | No. 54659,No. 2,54659,2 |
| Citation | 461 S.W.2d 876 |
| Parties | NEW AGE FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff, v. Ella MILLER et al., Appellants. COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION, Robert F. Stanton, Trustee for Community Federal Savings and Loan Association, Defendants, v. RELIANCE INSURANCE COMPANY, Respondent |
| Court | Missouri Supreme Court |
Charles A. Lee, Jr., Clayton, Rollin J. Moerschel, St. Charles, Adolph K. Schwartz and James M. Byrne, St. Louis, for appellants.
Joseph L. Leritz, Leritz & Leritz, St. Louis, for respondent Reliance Ins. Co.
PRITCHARD, Commissioner.
This case began as a quiet title suit brought by New Age Federal Savings and Loan Association, asking that it be declared to be the owner in fee simple of certain real estate, and also asking for judgment against Firemen's Insurance Company of Newark, New Jersey, for $33,000, which, as pleaded, issued its policy of fire insurance on the property which was destroyed by fire on March 11, 1964 (the date varies according to all the pleadings).
For its claim to title, New Age alleged that in settlement of a lawsuit against it by one Rodger Villery it delivered to him a warranty deed in which Ella Miller was named grantee. It was alleged that Ella Miller was the mother of Rodger Villery, and was the 'nominee and straw party' for Rodger and Delores Villery. New Age alleged that before Villery's deed was recorded it was altered as to description (apparently it is alleged that an exception and reservation of a .47-acre tract reserved to New Age was cut off--this is the same .47-acre tract in which Reliance Insurance Company obtained summary judgment that Ella Miller, et al., had no title so as to give them an insurable interest), which was a fraud as to it and caused Ella Miller to hold the property as a trustee ex maleficio for New Age's benefit. Thereafter, it was alleged, Ella Miller obtained a $10,000 loan from Community Federal Savings and Loan Association secured by a deed of trust, and later obtained a second loan for $5,000 from Joseph Ferguson, also secured by a deed of trust. New Age made demand and proof of loss on Firemen's Insurance Company's policy, but has not been paid. New Age in its petition says that it is necessary for the court to declare it to be the owner of the property (about 0.47 acre) and that as owner it is entitled to have its property restored by defendant fire insurance company 'and that the interests of the parties hereto be declared and fixed.'
Ella Miller and Rodger and Delores Villery filed answer admitting delivery of the deed from New Age, that Ella was a straw party for the Villerys, but denied that the deed was altered prior to recordation. These three parties defendant also filed a counterclaim against New Age and a third-party petition (Count I) against respondent Reliance Insurance Company. The claim of third-party plaintiffs against Reliance is that they are fee owners of the property involved, secured a policy of fire insurance from Reliance for $25,000; that the fire of March 15, 1964 destroyed it and after proof of loss Reliance failed to make payment to Ella and the Villerys, who ask judgment on the policy, attorney fees and damages for vexatious delay.
The counterclaim (Count II) against New Age, which also included a third-party petition against defendants Walter A. Younge, L. Simington Curtis, Harry G. Douglas, S. D. Miller, A. C. Phillips, Henry Harding, Julius C. Sherard and Irving A. Williamson (as officers and directors of New Age), set forth that Ella and the Villerys were the owners of the property involved, and were in possession of it (and certain household goods therein) from October 13, 1954 until June 21, 1963. On the latter date New Age, without the three defendants' consent or knowledge, broke into the premises, changed the locks, and deprived them of peaceable enjoyment from June 21, 1963...
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