Pouder v. Colvin

• Decision Date: 21 April 1913
• Parties: H. C. POUDER, Respondent, v. F. E. COLVIN, Appellant
• Court: Kansas Court of Appeals

156 S.W. 483

170 Mo.App. 55

H. C. POUDER, Respondent, v. F. E. COLVIN, Appellant

Court of Appeals of Missouri, Kansas City

April 21, 1913

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

Judgment affirmed.

Sebree Conrad & Wendorff for appellant.

(1) Is the attempted release by Howard invalid, if he was not the owner of the note, and was not authorized by the owner thereof to make the release? Investment Co. v Vette, 142 Mo. 574; Joerdens v. Schrimpf, 77 Mo. 382; Brown v. Koffler, 133 Mo.App. 501; Bank v. Life Ins. Co., 145 Mo. 142. (2) Was the circuit court justified in granting a new trial to respondent? Sec. 2514 R. S. 1909; State ex rel. v. Wood, 155 Mo. 447; Schuester v. Meyers, 148 Mo. 429; Greer v. Bank, 128 Mo. 559; Whittiker v. Gas Co., 16 W.Va. 717; Brookman v. Metcalf, 5 Bosw. (N. Y.) 445; Fretwell v. Laffoon, 77 Mo. 26; Richardson v. Farmer, 36 Mo. 46; Shotwell v. McElhinney, 101 Mo. 683; Tittman v. Thornton, 107 Mo. 511; Parker v. Britton, 133 Mo.App. 278.

Cowherd, Ingraham, Durham & Morse for respondent.

(1) The court sustained the motion for a new trial "for the reason that the court is of the opinion that the judgment rendered in this case was not justified by the evidence." This is equivalent to finding that the verdict is against the weight of the evidence and is not reviewable in the appellate courts. Crawford v. Stock Yards Co., 215 Mo. 394; Johnson v. Grayson, 230 Mo. 393; McKay v. Underwood, 47 Mo. 187; Bank v. Armstrong, 92 Mo. 265; Fitzjohn v. Transit Co., 183 Mo. 78; Taylor v. Railroad, 163 Mo. 191; Canterbury v. Kansas City, 130 Mo.App. 4. (2) The burden rests upon appellant to show the court erred in granting the new trial. Bed Co. v. Bank, 148 Mo. 482; Ensor v. Smith, 57 Mo.App. 584; Taliaferro v. Evans, 160 Mo. 389; Bank v. Armstrong, 92 Mo. 278. (3) The proof of ownership by Colvin was not satisfactory, and unless Colvin was the owner he had no authority to request the sale. Greer v. Bank, 128 Mo. 559; Cantwell v. Johnson, 236 Mo. 607; Magee v. Buick, 108 Mo. 336; Plummer v. Knight, 156 Mo.App. 321. (4) Colvin should be estopped from asserting any rights under the note claimed to be held by him. Life Ins. Co. v. Smith, 117 Mo. 292; Adams v. Glossom, 228 Mo. 235; Eck v. Hotcher, 58 Mo. 235; Zweigert v. Reed, 221 Mo. 44. (5) Colvin's failure to take the stand should weigh strongly against him. Life Ins. Co. v. Smith, supra; Leeper v. Bates, 85 Mo. 228; Baldwin v. Whitecomb, 71 Mo. 657; Mabary v. McGraw, 74 Mo. 574; Kelly v. Hart, 74 Mo. 562.

OPINION

TRIMBLE, J.

--Injunction to prevent a foreclosure by defendant who claims to be the owner and holder of the note described in and secured by a deed of trust. The court found for defendant and dismissed the bill, but granted a new trial. From this order defendant appealed.

The deed of trust in question was executed June 10th, recorded June 22, 1903, and was given to secure a note of even date therewith for $ 2000, due five years after date with interest coupons attached. The whole trouble between the parties to this suit grows out of the fraudulent conduct of the beneficiary, Arthur M. Howell. He was a dealer in real estate, building houses in Kansas City and borrowing various sums of money from different sources. To secure these loans he would have his brother execute a note to him and secure it by deed of trust. Having a note payable to himself and thus secured, he, in some manner, would obtain the execution of a duplicate note, genuine as to signature, but fraudulent in that it could be negotiated as being secured by the deed of trust recorded as security for the original.

At the same time, not known when, Howell prepared a duplicate of the note secured by the deed of trust above mentioned, so that there were two notes in existence each apparently secured by the deed of trust. Under one of these notes, the deed of trust was released on the margin of the record June 4, 1909, by B. C. Howard as assignee. Thereafter another deed of trust was placed on the property, under foreclosure of which plaintiff purchased and became the apparent owner. Defendant, as the owner and holder of the other note apparently secured by the deed of trust of June 10, 1903, began foreclosure thereof, whereupon plaintiff brought this action. The question is, which is the genuine note and which the fraudulent duplicate? If the note presented to and cancelled by the recorder, at the time of the marginal release by Howard as assignee, was the fraudulent duplicate, then such release was void, since he was not the holder nor owner of the note secured and had no authority from the true owner to make the release. [Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S.W. 754; Joerdens v. Schrimpf, 77 Mo. 383; Brown v. Koffler, 133 Mo.App. 494, 113 S.W. 711; Ripley Bank v. Life Ins. Co., 145 Mo. 142, 47 S.W. 1.] And defendant can foreclose said deed of trust without first having the attempted release set aside. [Authorities, supra.] On the other hand, if the note now held by defendant is the genuine note described in and secured by the deed of trust, defendant is entitled to foreclose without regard to the release made by Howard. So that the all important question at the trial was, which was the genuine note? The court sustained the motion for new trial "for the reason that the court is of the opinion that the judgment rendered in this case was not justified by the evidence. A transcript of the evidence has been made and submitted to the court, and on reading the same the court is of the opinion that the proof that Colvin was the bona fide holder and owner of the indebtedness and by reason of that authorized to demand a foreclosure of the property is indefinite and does not sufficiently establish that fact. The case was not as efficiently tried as it might have been, and the court is of the opinion in the interest of justice that there should be a rehearing of the matter." This may mean that the judgment was not justified by the evidence because the proof as to Colvin's bona fide ownership of the note was indefinite. Or it may mean that the judgment is against the weight of the evidence; and the indefiniteness of the proof as to Colvin's ownership and the inefficiency of the trial are stated as additional reasons why a new trial should be had. We prefer to adopt this last construction since it is the one adopted by counsel on both sides. As thus construed, the court, in effect, gives three reasons for ordering a new trial. First, because the judgment is against the weight of the evidence; second, because the proof as to Colvin's ownership of the note was indefinite; and third, because the case was not as efficiently tried as it might have been. The second reason given is not a good one since no question was raised either in the pleadings or in the evidence as to Colvin's ownership. Prima facie, he made a clear showing of ownership, and doubtless one reason why no more convincing or definite showing was made was because the bona fides of the ownership was not brought in question even indirectly. If it be said that he was required by the nature of the case to show his ownership of the note, he did this sufficiently to entitle him to a judgment so far as the bona fides of his ownership is concerned. The third reason is not a good one because if a judgment can be set aside for the reason that the case was not tried as efficiently as it might have been, then few judgments would stand. And such a rule would invite inefficiency and carelessness. If the case was inefficiently tried it is not apparent on the record, but even if it was, this would be no ground for a new trial.

This brings us to a consideration of the remaining ground, to-wit, that the judgment was not justified by the evidence. If this does not mean that the judgment is against the weight of the evidence, it does mean that the evidence is not sufficient, in the opinion of the trial court, to sustain the judgment.

As this is an equity case we are not bound by the findings of the trial court but can weigh the testimony and decide for ourselves if the testimony is sufficiently strong and clear to definitely answer the vital question in the case. That question, as stated before, is: Which is the genuine note secured by the deed of trust?

In support of the contention that his is the genuine note defendant claims that the deed of trust and note were in the handwriting of and drawn up by Mrs. C. H. R. McElroy under the direction of her husband who took the acknowledgment as notary. And McElroy identifies defendant's note as being in his wife's handwriting. Defendant traces said note from the time of its execution until it came into his possession as follows: On the day the deed of trust was recorded June 22, 1903, Arthur M. Howell borrowed $ 8000 from the Pioneer Trust Company and put up as collateral five notes secured by deeds of trust, one of which is shown to be a "Howell note for $ 2000." This note, whether it be the genuine or the duplicate note, remained with the Pioneer...