Powell v. Banks
| Decision Date | 08 December 1898 |
| Citation | 48 S.W. 664,146 Mo. 620 |
| Parties | Powell et al. v. Banks et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.
Reversed and remanded (with directions).
John Montgomery, Jr., Sangree & Lamm and Geo. P. B. Jackson for appellants.
(1) The deed of trust relied on by plaintiffs was not a perfect deed because it never was so delivered as to give effect as a completed deed. Hammerslough v. Cheatham, 84 Mo. 20; Huey v. Huey, 65 Mo. 692; Gruning v Steele, 122 Mo. 287; Railroad v. Ilif, 13 Ohio St. 252; Hicks v. Goode, 12 Leigh, 479; Overman v. Kerr, 17 Iowa 490; Brevard v. Neeley, 34 Tenn. 169; Conner v. Balwin, 16 Minn. 175; Hill v. McMichal, 13 A. 886; State ex rel. v Porter, 63 Mo. 212; St. Louis P. Club v Tegler, 17 Mo.App. 571; State v. McGonigle, 101 Mo. 362; Henderson v. Bondurant, 39 Mo. 369; Ayers v. Milroy, 53 Mo. 516; Wendlinger v. Smith, 75 Va. 309; Ramsey v. Otis, 133 Mo. 85; Provart v. Harris, 150 Ill. 40. (2) The pretended deed of trust in favor of plaintiffs was void because of the unauthorized alterations made by the cashier of the Citizens' Bank. Bank v. Fricke, 75 Mo. 178; Hood v. Taubman, 79 Mo. 102; Bank v. Nickle, 34 Mo.App. 298; Robinson v. Berryman, 22 Mo.App. 510; Bank v. Meyers, 50 Mo.App. 157; Evans v. Foreman, 60 Mo. 449; Bank v. Dunn, 62 Mo. 79; Moore v. Hutchinson, 69 Mo. 429; Bank v. Packing Co., 70 Mo. 643; Transit Co. v. Sheedy, 103 Pa. St. 492; Perean v. Frederick, 17 Neb. 117. The burden was on the plaintiffs to explain the alterations, and to show that they were made with the knowledge and consent of Mr. Banks. 1 Greenleaf on Ev. [13 Ed.], sec. 564; Stilwell v. Patton, 108 Mo. 360; Paramore v. Linday, 63 Mo. 63; Smith v. Ferry, 69 Mo. 142; Patterson v. Fagan, 38 Mo. 70. (3) Independently of and before the execution of the deed of trust to them, Mrs. Banks and the insurance company had an equity to be secured on the land in question which was superior to any lien which plaintiffs could acquire under their deed, even if it was valid. When Mrs. Banks incumbered her land, about April 1, it was agreed that her husband should secure her and the debt to the insurance company by a deed of trust on the land in controversy. This was a valid contract, in equity, at least. Turner v. Shaw, 96 Mo. 22; Morrison v. Thistle, 67 Mo. 596; McLaren v. Mead, 48 Mo. 115; Fennison v. Fennison, 46 Mo. 77; Small v. Field, 102 Mo. 104; Pitts v. Sheriff, 108 Mo. 110; 2 Story Eq. Juris. [12 Ed.], sec. 1373; Schouler's Husb. & Wife, secs. 391, 394 and 403; Tate v. Austin, 1 P. Will, 264; Neimcenicz v. Gahn, 3 Paige, 614; Pawlet v. Delaval, 2 Vesey, 663; Innes v. Jackson, 16 Vesey, 356; Hanford v. Bockbee, 5 C. E. Green, 101; Hoxie v. Price, 31 Wis. 82; Livingston v. Livingston, 2 Johns. Ch. 537; Bornie v. Stonestreet, 6 Ind. 418; Jones v. Jones, 18 Md. 464; Peiffer v. Lytle, 58 Pa. St. 386; O'Hara v. Dilworth, 72 Pa. St. 397; Steadman v. Wilbur, 7 R. I. 481; Woodsworth v. Tanner, 94 Mo. 124; McCollum v. Boughton, 132 Mo. 601. (4) It is immaterial whether plaintiffs knew of the subsisting agreement between Mr. and Mrs. Banks or not. It was still superior to the lien they attempted to secure without any consideration, other than their pre-existing debts. 2 Pom. Eq., sec. 749; Bank v. France, 112 Mo. 502; Skilling v. Bollman, 73 Mo. 665; Wine Co. Rinehart, 42 Mo.App. 171; Watson v. Prtg. Co., 56 Mo.App. 145; Strauss & Co. v. Hirsch & Co., 63 Mo.App. 95; Crawford v. Spencer, 92 Mo. 498; Bank v. Bates, 120 U.S. 556; Goetzinger v. Rosenfeld, 16 Wash. 392; Alston v. Marshall,, 112 Ala. 638. (5) The first pretended deed of trust to plaintiffs, of April 27, was merged in the second one which they obtained from Mr. and Mrs. Banks on April 28, and the latter, the only valid one, recognized the deed to Mrs. Banks and the insurance company as a prior lien to that given to plaintiffs. Mead v. Gray, 78 Mo. 59; Atkinson v. Augert, 46 Mo. 515; Dubuque Natl. Bank v. Weed, 57 F. 513; 1 Jones on Mortg., secs. 848 and 856; Tiedeman Real Prop., sec. 321; 2 Washburn Real Prop. [4 Ed.] 196; Forbes v. Moffatt, 18 Vesey, 384; Campbell v. Kights, 24 Me. 332; Judd v. Lukins, 62 N.Y. 266. (6) The judgment was improperly rendered because of the death of the plaintiff, Mrs. Wharton, and when the same was brought to the attention of the court, the judgment should have been set aside in order that the case might have been revived and proceeded with according to law. Gamble v. Daugherty, 71 Mo. 599; Sargeant v. Rowsey, 89 Mo. 617; Rogers v. Tucker, 94 Mo. 346; Bliss on Code Pleading, sec. 441; Black on Judgments, sec. 204; McLaran v. Wilhelm, 50 Mo.App. 658.
Barnett & Barnett, C. E. Yeater and W. S. Shirk for respondents.
(1) The deed of trust relied on by plaintiffs' was a perfect deed so far as John S. Banks was concerned. It was so delivered by him as to give effect to it, as a completed deed. The fact that the instrument was originally prepared with the name of the wife written therein for the purpose of having her join her husband in its execution, and that she refused to sign same, does not render it an incomplete instrument so far as the said John S. Banks is concerned. Stanley v. White, 160 Ill. 605; Hyne v. Osborne, 28 N.W. 821; Brooks v. Isabell, 22 Ark. 488. First. John S. Banks the grantor acknowledged the deed of trust, and placed it in the hands of the grantees with no intention of retaking the possession thereof. There was nothing left for him to do before the deed should become operative, and no conditions remained to be performed by the grantees. The grantor had divested himself of all dominion over the conveyance, and this is the infallible test of delivery. Sneather v. Sneather, 104 Mo. 201; Standiford v. Standiford, 97 Mo. 231; Vanstone v. Goodwin, 42 Mo.App. 39; Huiser v. Beck, 55 Mo.App. 668; Croder v. Searcy, 103 Mo. 97; Devorse v. Snyder, 60 Mo. 235; Ells v. Railroad, 40 Mo.App. 165; Richmond v. Morford, 30 P. 241. Second. The delivery of the trust deed will be presumed from the fact of its having been placed in the possession of the grantee. 5 Am. and Eng. Ency. of Law, 447; Scott v. Scott, 95 Mo. 300. (2) There were no alterations made which affected the validity of the deed of trust. The uncontradicted evidence was that no alterations were made after Banks signed and acknowledged the instrument. Yet in the absence of evidence to the contrary the law presumes that the alterations were made prior to the execution of the instrument. Stillwell v. Patton, 108 Mo. 352; Holton v. Kemp, 81 Mo. 561; Paramore v. Lindsey, 63 Mo. 63; Lubering v. Kohlbrecher, 22 Mo. 596; Matthews v. Coalter, 9 Mo. 705.
This is an equitable proceeding to establish the priority of a lien of a certain deed of trust made by J. S. Banks to J. D. Crawford, as trustee for the plaintiffs, on certain real estate situated in Pettis county, over another deed of trust made by said Banks for the joint benefit of the Mutual Benefit Life Insurance Company of Newark, N. J., to secure a debt to said company of Mrs. Banks, and to indemnify her on account of having mortgaged her land for the benefit of her husband. Both deeds of trust cover the same land and bear date of April 27, 1893. The latter trust deed, however, was put upon record before the former. The amended petition upon which this cause was tried, as ground for relief, alleged that the deed of trust in plaintiff's favor was executed prior to the one under which defendants claim, but on the same day, and that defendants had actual notice of the prior execution of the deed of trust for the benefit of the plaintiffs at the time of the execution of the deed of trust in their favor, and that late in the afternoon of April 27, 1893, and after the closing of the recorder's office, the defendants, through their agent, induced the deputy recorder to open the office, and thereupon, "with the wrongful and fraudulent intent of depriving plaintiffs of the just and prior lien that they were entitled to have on said real estate under and by virtue of said deed of trust, filed in the manner aforesaid the said deed of trust for the benefit of the defendants." The petition further alleges that plaintiffs filed their deed of trust on the morning of April 28, and that the defendant, J. S. Banks, was utterly insolvent at the time.
The answer of defendants, which was under oath, after admitting the execution of the deed of trust to them and the filing of the same for record, denied that J. S. Banks executed the deed of trust set forth in the petition in favor of the plaintiffs, or that plaintiffs had recorded any such deed of trust, or that any such deed was entitled to priority over the deed of trust in favor of defendants, or that they used any improper means to procure the recording of their deed, or that they had any knowledge of plaintiffs' deed of trust. The answer further averred that at the time defendants received and recorded the deed of trust in their favor, no other deed of trust had been executed or delivered to plaintiffs, but that the defendants, J. S. Banks and his wife, did execute a deed of trust in favor of plaintiffs after the execution and recording of and subject to, the deed of trust in favor of the defendants, but that said deed was executed and delivered to, and accepted by plaintiffs on April 28, 1893, and thereafter recorded, and that the same was given to plaintiffs for the purpose of securing the debts described in the petition. The answer further alleges that the deed of trust in favor of defendants was executed and delivered on April 27, 1893, for a valuable consideration without any notice of the deed of trust in favor of ...
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