Perrin v. Johnson

• Decision Date: 30 January 1939
• Docket Number: No. 19270.,19270.
• Citation: 124 S.W.2d 551
• Parties: PERRIN v. JOHNSON.
• Court: Missouri Court of Appeals

124 S.W.2d 551

PERRIN v. JOHNSON.

No. 19270.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by A. R. Perrin against Charles W. Johnson, receiver for the Armourdale State Bank, to recover the statutory penalty for failure to release a trust deed of record or furnish a deed of release after full payment of debt secured, overpayments made on such debt, and special damages for failure to satisfy and cancellation of deed. Judgment for defendant, and plaintiff appeals.

Affirmed.

Harold Fredman and W. Raleigh Gough, both of Kansas City, for appellant.

Clarence S. Palmer, of Kansas City, for respondent.

BLAND, Judge.

This is an action to recover the statutory penalty, provided by Section 3085, R.S. 1929, Mo.St.Ann. § 3085, p. 1914, for the failure to release of record a deed of trust, or furnish a deed of release, after there had been a full payment of the debt secured by the deed of trust; for the recovery of over-payments alleged to have been made upon the debt; for special damages sustained as a result of the failure to satisfy the deed of trust and for its cancellation.

The case was tried by the court without the aid of a jury, resulting in a judgment in favor of the defendant. Plaintiff has appealed.

Section 3078, R.S.1929, Mo.St.Ann. § 3078, p. 1909, provides: "If any mortgagee * * * or assignee * * * receive full satisfaction of any mortgage or deed of trust, he shall, at the request and cost of the person making the same, acknowledge satisfaction of the mortgage or deed of trust on the margin of the record thereof, or deliver to such person a sufficient deed of release of the mortgage or deed of trust."

Section 3085, R.S.1929, provides: "If any such person, thus receiving satisfaction, does not, within thirty days after request and tender of cost, acknowledge satisfaction on the margin of the record, or deliver to the person making satisfaction a sufficient deed of release, he shall forfeit to the party aggrieved ten per cent. upon the amount of the mortgage or deed of trust money, absolutely, and any other damages he may be able to prove he has sustained, to be recovered in any court of competent jurisdiction."

The facts show that on December 31st, 1923, Fred H. Shackelford and Esther Anita Shackelford executed a promissory note in the sum of $962.00, in favor of one Smith F. Figley, payable in monthly installments of $15.00 each, at 6% interest. Said note was secured by a second deed of trust on certain real estate in Kansas City, which was acquired by plaintiff on or about June 20th, 1924 from the makers of the note. At that time the sum of $910.54 was due upon the note. The note, after its execution, was acquired by McGrew and Clark and they, in turn, sold it to the Armourdale State Bank. The date of acquisition of the note by the bank is not shown in the record. After its acquisition the bank went into the hands of a receiver and this suit is brought against Charles W. Johnson, the Receiver thereof.

The petition alleges that the note was over-paid and that the defendant refused to release the deed of trust, or furnish a deed of release, although the plaintiff had tendered the cost of releasing the same.

The answer, upon which the case was tried, consists of a denial of the allegations of the petition, except as to the ownership of the property by the plaintiff and an admission that he had made certain payments on the note.

The note was introduced in evidence and showed a number of payments endorsed on the back thereof, aggregating the sum of $827.00 or $827.13, the record is not clear which. However, this discrepancy is not material. A proper computation of the interest shows $38.00 is to be deducted for this item from said sum of $827.00, in order to arrive at the amount which should be credited as principal on the note. Such deduction leaves the sum of $789.00. Of the credits shown on the note, made up to and including February 10th, 1925, the first eleven make no distinction between the payment of interest and the payment of the principal. Of the seven last credits, of the first eleven, there is simply a credit of $15.00 each. Subsequent endorsements give a separate statement of the principal and the interest. The last payment endorsed on the note is dated June 15th, 1931. This suit was instituted on October 24th, 1933.

Plaintiff was the only witness in the case. He testified that he had paid $1358.37 on the note. Counsel for defendant, thereupon, asked plaintiff to give the items constituting the total amount he claimed to have paid. Counsel for plaintiff stated that in order not to "encumber the record" plaintiff would submit a detailed statement that he had prepared, showing the payments that he claimed to have made, and that counsel for defendant could have the privilege of "cross-examining the records introducing * * * bringing out those individual payments." Counsel for defendant then stated: "There are certain things that certain receipts there don't show being made and executed by the officers of the bank at all. The bank didn't know anything of them at all. We want to have those receipts produced. If he will introduce the receipts. In that petition he said certain receipts I haven't got credit for. I don't want him to give you a sum total what he paid. He alleged in other petitions he had made certain payments and some of those receipts haven't — The Court: (interrupting): Have you receipts for all payments you made on this matter? The witness. With the exception of some delivered to former counsel and some delivered to a party it was sold to at one time."

This statement alluded to by counsel for plaintiff, was afterwards introduced in evidence without objection. It was made up by plaintiff from receipts in his possession. The statement shows the method by which plaintiff arrived at his testimony that he had paid on the note the sum of $1358.37. That amount was arrived at by adding to $827.13 (the amount credited on the note) the sum of $531.44, being the total payments shown by the statement to have been made and not credited on the note together with interest thereon to the date upon which the statement was made, which was shortly before the trial. The case was tried on the 27th day of May 1927. The statement purports to show, in detail, all of the payments made by plaintiff, the amounts paid as principal and the amounts paid as interest, from the time plaintiff acquired title to the property. (The interest being figured to December 1st, 1933.) This statement shows some 20 payments which allegedly were not credited on the note. These items total in principal the sum of $319.85. Interest is computed on all of these items to December 1st, 1933 at $119.36, making a total of $439.21. Then the interest is computed on this total from December 1st, 1933 to the time of making up the statement, making a total of $531.44, the sum mentioned above. The amount of over-payments claimed by plaintiff was arrived at by deducting from said sum of $531.44 the sum of $260.60, which latter amount was comprised of the amount shown unpaid by the note, $119.40 which includes interest to December 1st, 1933 (according to the statement) and interest thereon to the date of the making of the statement. The balance or $270.84 is the amount claimed by plaintiff to have been overpaid on the note and shown by the statement.

On cross-examination it was made to appear that three of the payments shown on the statement of $15.00 each on the principal were made by the plaintiff to McGrew and Clark. There is no evidence that either of these two had any authority to make collections for the bank.

So far as we can glean from the record a number of the payments made by the plaintiff to the bank were made under the following procedure: The bank would send a dated statement to the plaintiff of the amount then due and he would forward the amount shown on the statement to the bank. The bank would mark the statement "cancelled" and return it to the plaintiff. It would naturally follow that the date shown on the receipts would be prior to the date shown on the back of the note in connection with the credit of the amount paid. In fact, plaintiff testified in reference to the date on one of the receipts: "You can't...