Northcutt v. McKibben

• Decision Date: 03 March 1942
• Citation: 159 S.W.2d 699,236 Mo.App. 605
• Parties: J. W. NORTHCUTT, RESPONDENT, v. FRANK L. McKIBBEN AND ELIZABETH McKIBBEN, HIS WIFE, APPELLANTS
• Court: Missouri Court of Appeals

159 S.W.2d 699

236 Mo.App. 605

J. W. NORTHCUTT, RESPONDENT, v. FRANK L. McKIBBEN AND ELIZABETH McKIBBEN, HIS WIFE, APPELLANTS

Court of Appeals of Missouri, St. Louis

March 3, 1942

Appeal from Hannibal Court of Common Pleas.--Hon. Edmund L. Alford Judge.

Judgment reversed and cause remanded.

Roy Hamlin for appellants.

(1) Laws of Missouri, Extra Session, 1933, 1934, p. 79; Downing v. Ringer, 7 Mo. 585; State ex rel Barlow v. Dallas County Court, 72 Mo. 329; Downey v Ringer; Sprague v. Rooney, 104 Mo. 357; Todd v. Ferguson, 161 Mo.App. 624; Cherokee Strip Live Stock Assn. v. Cass Land & Cattle Co., 138 Mo. 394; Tri State Amusement Co. v. Forest Park Highlands Amusement Co. et al., 192 Mo. 404; 17 C. J. S. 557, sec. 202; Howell v. Fire Ins. Co., 257 S.W. 178; State ex rel. American Surety Co. of New York v. Haid et al., Judges, 30 S.W.2d 100; Clair et al. v. American Bankers Ins. Co., 137 S.W.2d 969. (2) Secs. 1099, 1259, 1534, R. S. Mo. 1939; 26 R. C. L., 1068, sec. 75; Roddy v. Mo. P. R. R. Co., 104 Mo. 234, 250; Printz v. Miller, 233 Mo. 47, 49; Staehlin v. Major et al., 199 S.W. 427; F. B. Chamberlain v. Kane, 264 S.W. 24, 26; State ex rel. Witte Hardware Co. v. McElhinney, 100 S.W.2d 36; Secs. 928, 929, R. S. Mo. 1939.

Ben Ely for respondent.

(1) State ex rel. City of California v. Mo. Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 106 A. L. R. 1169. (2) Magoffin v. Mo. P. Ry. Co., 15 S.W. 76, 102 Mo. 540, 22 Am. St. Rep. 798; Clemens v. Knox, 31 Mo.App. 185; Stephens v. Koken Barber Supply Co., 67 Mo.App. 587; Hoster v. Lange, 80 Mo.App. 234. (a) Sec. 3435, R. S. Mo. 1939. (b) The recitals in the trustee's deed are prima facie correct and in the absence of rebutting evidence must be taken to be true. Sec. 3481, R. S. 1939. (3) Sec. 3, Missouri Liquor Control Act, Laws of Missouri, Extra Session, 1933-34, p. 79. (4) Nicholson v. Ellis, 110 Mo. 322, 73 A. 17, 24 L.R.A. (N. S.) 942; Mallinckrodt, etc., Works v. Nemnich, 169 Mo. 388, 69 S.W. 355; McCullough v. Virginia, 172 U.S. 102, 43 L.Ed. 382. (2) Appellants' assignment of error on the admission and rejection of evidence is too general to present any question for the consideration of this court. Conley v. K. C. Rys. Co., 259 S.W. 153; Sanzenbacher v. Santhuff, 220 Mo. 274, 119 S.W. 395; Mahmet v. Am. Radiator Co. (Mo.), 294 S.W. 1014; Schultz v. Moon, 33 Mo.App. 329; Holten-Warren Lumber Co. v. Miller, 64 Mo.App. 620; Robert v. K. C. R. Co., 204 Mo.App. 586, 228 S.W. 902. (6) This court has jurisdiction over an action for ejectment since possession and not legal title is involved. State ex rel. Edie v. Shain, 152 S.W.2d 174.

HUGHES, P. J. McCullen and Anderson, JJ., concur.

OPINION

HUGHES, P. J.

This is an action in ejectment to recover the possession of certain real estate situate in Hannibal, Missouri.

The petition alleges that plaintiff became entitled to such possession on the 30th day of April, 1940, by becoming the owner of the real estate at a trustee's sale under a deed of trust given by the defendants, and that from said date the defendants have withheld and do still withhold the possession from plaintiff. The prayer of the petition is for the recovery of the possession of the real estate and for damages in the sum of $ 500 and for rents and profits from April 30, 1940, to the date of judgment.

The answer is (1) a general denial, and (2) a former suit pending, and (3) a plea that the note and deed of trust through which plaintiff obtained a trustee's deed were without consideration and void because given in violation of Section 3, p. 79, Laws of Missouri, Extra Session 1933-1934, in that plaintiff was an agent and employee of Dick Brothers Brewing Company and that the note and deed of trust had been given by the defendants to borrow money for and on behalf of defendants' two sons, to enable the two sons to purchase equipment and intoxicating liquors and engage in the retail business of selling intoxicating liquors; that Dick Brothers Brewing Company and this plaintiff not only furnished the money represented by said note but also furnished equipment for a saloon to be conducted by defendants' two sons, and obligated defendants' sons to buy and sell at retail the products manufactured and sold by the Brewing Company, and by reason of these things the trustee's deed to plaintiff was void, and (4) a plea by way of counterclaim, that defendants had been damaged by reason of the advertisement and sale under the deed of trust and by the filing of this suit, for which they prayed judgment against plaintiff.

Plaintiff's reply was a general denial.

The trial of the issues thus framed was had before the court and a jury.

There was no dispute as to plaintiff's documentary evidence, which was as follows:

On July 9, 1936, defendants executed and delivered to one Fred Hodson a promissory note for $ 1500 with interest at the rate of 6 per cent per annum, and payable three years after date; and to secure the same executed and delivered a deed of trust covering the property involved. On the 30th day of April, 1940, default having been made as to payment of both principle and interest the deed of trust was foreclosed and the plaintiff, who held and claimed to be the owner of the note, purchased the property and received the deed from the trustee thereto.

Defendants refused to surrender possession of the property involved and this suit in ejectment was instituted.

The facts attending the transaction were developed at great length and are in substance as follows:

Walter Stillwell, an attorney, testified that about July 9, 1936, he had a conversation with Fred Hodson in regard to preparing a note and deed of trust and the examination of an abstract; that he did examine the abstract and prepared the note and deed of trust and they were executed by Frank L. and Elizabeth McKibben at his office in the Court House at Hannibal on or about July 9, 1936; that he held the papers until the next day at which time Hodson said he would deliver the $ 1500, the amount of the note; that Frank L. McKibben instructed him to deliver the money to his two sons, Paul and Lawrence McKibben, and take a receipt for it; that on July 10, 1936, Fred Hodson came to his office with the $ 1500 in cash, and that he (the witness) and the two McKibben boys took the $ 1500 and went to the office of Bassen and Raible at the American Trust Company, and paid off a mortgage on the property, and that the balance of the money remaining he turned over to Paul and Lawrence McKibben, and they gave him a receipt for it, which receipt he gave to Fred Hodson. He further testified that the two senior McKibbens were accompanied to his office by their two sons on the occasion that the note and mortgage were signed, but the elder McKibbens were not present the next day when the money was delivered.

Fred Hodson, called as a witness by plaintiff, testified that in the spring and summer of 1936, he worked for J. W. Northcutt as a bookkeeper; that during the latter part of June or the first part of July, 1936, Paul and Lawrence McKibben talked to him about getting a loan for their parents Frank and Elizabeth McKibben; witnesses said that they came down and asked him if he knew where they could get some money; that their father and mother would make a loan on the home property; that they wanted $ 1500; that he told them, "Well, we would have to check up on the deed of trust and see if everything was okay," which was done; that it was not mentioned to him at that time about a loan to the McKibben boys for going into the saloon business. This witness further testified that he took Mr. Northcutt by the property in a car and showed him the property in that manner; that after he heard that the McKibbens had signed the note he got the $ 1500 from Mr. Northcutt and took it to Mr. Stillwell's office and turned it over to him; that he kept the note and deed of trust in his possession for about two or three months, and Mr. Northcutt asked for them and he endorsed his name on the back of the note and turned the papers over to Mr. Northcutt.

On cross-examination witness Hodson testified that Mr. Northcutt was distributor of beer for Dick Brothers Brewing Company, that Northcutt had an agency for the Brewing Company for Hannibal, which agency he took over when prohibition was abolished in 1933. He further testified that he did not know that Paul and Lawrence McKibben were getting the money; that they said they wanted to borrow some money for their folks; that the note was made in his name as a business proposition but he had no interest in the $ 1500 or in the note. He further testified that Bob Dick looked after and personally supervised the Hannibal territory for the Brewing Company, and he was in Mr. Northcutt's place of business frequently during the months of June and July. He further testified that the reason the note was not taken in Mr. Northcutt's name was a business proposition, that Mr. Northcutt had been requested to make loans and stuff like that and it was just a business proposition; that he did not remember whether it was Mr. Northcutt or Mr. Stillwell that directed the note be made payable to him.

J. W Northcutt, plaintiff, testified that Mr. Hodson told him that Mr. Frank L. McKibben and wife wanted to make a loan, which loan witness said he told Hodson, if the security was sufficient he would make; that he requested that the note and deed of trust be made out in Mr. Hodson's name; that he would not make any loan in his name because it would be a matter of record and would be embarrassing; that after the execution of the note and deed of trust he got the money out of his account in the Hannibal National Bank. He further testified that the McKibben boys handled Dick Brothers draught beer for on or...