Old Bank Trust Co. v. Orr, 21026.

• Decision Date: 08 April 1930
• Docket Number: No. 21026.,21026.
• Parties: OLD BANK TRUST CO. v. ORR et al.
• Court: Missouri Court of Appeals

26 S.W.2d 856

OLD BANK TRUST CO. v. ORR et al.

No. 21026.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

"Not to be officially published."

Action by the Old Bank Trust Company, a corporation, against S. R. Orr and another. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Harry J. Libby, of Shelbina, for appellant.

Lane B. Henderson, of Shelbina, for respondents.

SUTTON, C.

This is an action in equity for an accounting, and for the recovery of $1,005.62, claimed by plaintiff as money due it as its share of the proceeds of a sale under a deed of trust of 160 acres of land in Shelby county. Defendant Orr was the trustee who made the sale under the deed of trust, and defendant Broughton was the purchaser at said sale, and is also the holder of two of the three notes secured by the deed of trust. Plaintiff claims to be the holder of the other of the three notes.

Upon the trial, the court gave judgment dismissing plaintiff's bill, and plaintiff appeals.

On February 28, 1920, William T. Damrell and Ella May Damrell, his wife, executed to plaintiff their deed of trust on 160 acres of land in Shelby county, to secure the payment of two notes for $4,000 each and one note for $2,000, signed by them and made payable to plaintiff. The notes were of the same date as the deed of trust, and were due and payable on February 28, 1925, with interest from date at 6 per cent. per annum, payable annually. The notes were given for a loan of $10,000 to William T. Damrell, and were entered on the books of the plaintiff as real estate bills receivable. On March 19, 1920, plaintiff sold, indorsed without recourse, and delivered, to defendant Broughton the $4,000 notes. On March 22, 1920, plaintiff sold, indorsed without recourse, and delivered, to B. G. Blackford the $2,000 note, and credited its real estate bills receivable account with the sum of $2,000. On December 8, 1923, E. T. Caldwell, one of plaintiff's directors, bid in said land at a foreclosure sale under a second deed of trust held by plaintiff, and received the trustee's deed therefor. Said Caldwell took title as grantee under said trustee's deed, but held the same in trust for the plaintiff. On March 4, 1925, plaintiff purchased the $2,000 note from Blackford, who indorsed the note without recourse and delivered it to plaintiff. Upon purchasing the note, plaintiff listed it among its real estate bills receivable, and debited its real estate bills receivable account with the sum of $2,000. On March 13, 1925, plaintiff sold, indorsed without recourse, and delivered, to defendant Broughton said $2,000 note, and credited its real estate bills receivable account with the sum of $2,000.

After the purchase of the land by Caldwell at foreclosure sale under the second deed of trust, the land was rented out to tenants, and the rents were deposited with the plaintiff to an account styled "Damrell Farm Account," and thereafter interest paid on the notes secured by the first deed of trust, and taxes paid on the land, were paid out of this account.

On August 27, 1926, plaintiff paid to defendant Broughton out of the Damrell farm account the interest on the notes up to February 28, 1926, amounting to $2,586.40. Plaintiff paid this interest by depositing the sum of $2,586.40 to the credit of defendant Broughton's checking account with plaintiff, for which plaintiff issued to defendant Broughton its deposit slip. On the same day plaintiff deposited to the credit of defendant Broughton's checking account $2,000, and issued to defendant Broughton a deposit slip therefor, and defendant Broughton delivered to the plaintiff the $2,000 note without indorsement. Concerning this transaction, defendant Broughton testified that he had the plaintiff pay off the $2,000 note; that Frank Dimmitt, president of plaintiff, and F. E. Lewis, secretary and treasurer of plaintiff, were present at the time the transaction occurred; that he went to them and told them he wanted the $2,000 note and the interest on the $4,000 notes paid; that he told them he did not want the money; that if they had a good note he would take it; that he told them he wanted them to pay the Damrell note off, and pay the interest on the two $4,000 notes; that he was carrying too much money on the land, and that his security was not sufficient; that he told them he would not ask them to pay the two $4,000 notes, as he thought the security would be sufficient for $8,000; that they went and got the notes and figured them up, and paid off the $2,000 note and the interest on the two $4,000 notes; that in payment they gave him a note which the plaintiff held against E. M. Woods and B. C. Woods, and credited the balance to his checking account with the plaintiff; that they gave him the Woods note, and paid him the balance in money, and that he just left the balance there on deposit in his checking account; that he bought the $2,000 note in good faith, and demanded payment of it in good faith; that they paid the face of the note and interest, and he delivered the note to them; that he never inquired further about the note, as it was nothing to him after it was paid; that at the time of this transaction, when the $2,000 note was paid, he knew that the plaintiff was the owner of the land; that he saw the land sold under the second deed of trust, and knew that the plaintiff bought it at the sale; that he knew that William T. Damrell, the principal maker of the note, had been adjudged a bankrupt; that the plaintiff held the farm about four years, and rented it out to a man named White; and that he thought White was the only tenant that was ever on the land.

When the plaintiff deposited to the credit of defendant Broughton's account $4,586.40, in payment of the interest on the three notes and the principal of the $2,000 note, and issued its deposit slips therefor, as before mentioned, defendant Broughton gave to plaintiff his check, on his checking account with plaintiff, for $3,087.50 in payment for the Woods note. The principal sum of this note was $3,000, and there was at the time $87.50 accrued interest thereon. Said note was secured by a deed of trust on real estate.

F. E. Lewis, plaintiff's secretary and treasurer, testified that on August 27, 1926, he purchased the $2,000 note from defendant Broughton; that he paid him the $2,000, and the...