Prather v. Hairgrove

• Citation: 214 Mo. 142,112 S.W. 552
• Parties: PRATHER v. HAIRGROVE et al.
• Decision Date: 14 July 1908
• Court: United States State Supreme Court of Missouri

112 S.W. 552

214 Mo. 142

PRATHER v. HAIRGROVE et al.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. BILLS AND NOTES—ACTIONS—EVIDENCE— PAYMENT.

In a suit to have a note declared paid and satisfied, the evidence examined, and held to show that the transaction by which defendant acquired the note was a purchase of the note, and not a payment and discharge thereof by him.

2. DIVORCE—CONVEYANCES IN FRAUD OF ALIMONY — TRANSFERS INVALID—INTENT OF GRANTEE.

If defendant purchased with his own money a note which had been assumed by plaintiff and her divorced husband, without any agreement between himself and plaintiff's husband to purchase it to prevent plaintiff from satisfying an alimony judgment against her husband out of a lot given as security for the note, he is not a trustee for plaintiff's husband or chargeable with the latter's statement that he intended to deprive his wife of the interest in such land.

3. SAME—EVIDENCE — WEIGHT AND SUFFICIENCY.

In an action to have a deed to defendant, executed by plaintiff's divorced husband, set aside on the ground that the transfer was made to deprive plaintiff of her interest in the land under a judgment for alimony, the evidence held not sufficient to justify setting aside the deed on that ground.

4. JUDGMENT — LIEN — PRIORITIES BETWEEN JUDGMENT AND DEED.

Defendant borrowed money from D. to purchase a certain note assumed by plaintiff's husband and secured by deed of trust, and as security for the money borrowed defendant gave D. a deed of trust on the land, and, the note purchased by defendant thereafter accruing, the land was sold and purchased by defendant, and the interest of plaintiff's husband in the lot conveyed to defendant. Plaintiff had theretofore secured a divorce from her husband and a judgment for alimony. Held that, there being no surplus, upon the sale under foreclosure above the amount of the defendant's note, there was no interest of plaintiff's husband in the land to which her judgment could attach.

5. MORTGAGES—TRUST DEED—SALE—ADEQUACY OF PRICE.

Where land estimated to be worth from $1,000 to $1,500 was sold at a trustee's sale for $832, there was no evidence of inadequacy of price.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Suit by Laura E. Prather against Elmer E. Hairgrove and others to have a certain note decreed paid and to set aside certain trust deeds. From a judgment in part for plaintiff, defendants appeal. Judgment reversed, with directions to dismiss.

Willis H. Leavitt, S. C. Price, and Hairgrove & Stubbs, for appellants. A. S. Marley, for respondent.

GANTT, J.

This is an appeal from a decree rendered by the circuit court of Jackson county, Mo., in favor of the plaintiff against the defendants in a suit in equity, the object and purpose of which was to obtain a decree that a certain indebtedness, represented by a note of $750, executed by Susie Hicks and E. Hicks, her husband, to E. S. Truitt, as trustee, conveying the W. ½ of lot 20, Saighman Place, an addition to Kansas City, Mo., had been paid and satisfied, and to set aside and decree as null and void a certain trustee's deed made by the said Garrett, as trustee, on August 1, 1903, for the purpose of foreclosing said deed of trust and satisfying said note, and also to set aside a certain quitclaim deed made by defendant Charles Prather to Elmer E. Hairgrove of date August 1, 1903, and filed of record in Jackson county, and also a certain deed of trust executed by the said Elmer E. Hairgrove to the defendant W. R. Lemley, as trustee, to secure an alleged indebtedness to Bertha J. Dockson in the sum of $770, and that all of said conveyances be adjudged null and void and canceled. The defendant Hairgrove, for his separate answer, denied all of the allegations of the petition, except those hereinafter specifically admitted in his answer. He admits that the plaintiff, Mrs. Laura E. Prather, and Charles E. Prather were at the time of the filing of the petition herein husband and wife, and that prior to August 1, 1903, the record title to the property known and described as the W. ½ of lot 20, Saighman Place, Kansas City, was in the said Charles E. and Laura E. Prather, and that at the time of the filing of the petition herein there was an action of divorce pending in the circuit court of Jackson county, Mo., wherein Charles E. Prather was the plaintiff and said Laura E. Prather was defendant, and that said court made an order on Charles E. Prather for the payment of $150 alimony pendente lite, and that at the time this suit was brought the said amount had not been paid. Said defendant further admits that on August 1, 1903, Charles E. Prather made, executed and delivered to defendant a quitclaim deed to the aforesaid described real estate, and the same was on said date duly recorded. Defendant further represented to the court: That the said property was at and prior to the date of purchase thereof by said Charles E. Prather incumbered by a deed of trust in the sum of $750, and the said deed of trust was a bona fide and existing incumbrance on said property therein described; that on the 24th day of September, 1900, said Charles E. and Laura Prather acquired the same by warranty deed; that by the terms of the contract of purchase it was agreed that the said Charles and Laura Prather acquired said property subject to the said deed of trust then existing and unpaid and assumed and agreed to pay said note and deed of trust as a part of the consideration and purchase price of said property. Said defendant Hairgrove further alleges that neither the said Charles E. Prather nor Laura E. Prather nor the makers of said note ever paid said note, nor has any one for them paid said note, as alleged in plaintiff's petition. Defendant then further alleges that said note becoming due and payable, and not having been paid upon demand of the legal holder of said note, the trustee, Garrett, in accordance with the terms and conditions of said deed of trust, caused the said property to be advertised for sale, and did on August 1, 1903, sell the same at auction for cash to satisfy said debt, and the said defendant Elmer E. Hairgrove was the highest and best bidder for the same, and thereupon the trustee, on the said last-mentioned date, made, executed, and delivered to said defendant Hairgrove a trustee's deed to said property, and by virtue of said deed said defendant is now, and has been since August 1, 1903, the legal owner thereof. The defendant Charles Prather admits that he was the husband of the plaintiff at the time alleged by plaintiff, that he was a joint owner of the property with her, and that he conveyed the same by quitclaim deed to his codefendant, Elmer E. Hairgrove. He denies that he ever paid off the note or the deed of trust on said property, and alleges that the deed of himself to said Hairgrove was a bona fide deed for good and sufficient consideration. He denies all manner of unlawful combination and confederacy wherewith he is charged in the petition and prays to be dismissed.

On the 6th day of June, 1900, Mrs. Susie Hicks and her husband, E. Hicks, executed and delivered to E. S. Truitt a note for $750, due three years after date, with interest thereon at the rate of 6 per cent. per annum, and on the same day executed and delivered a deed of trust in the usual form to W. E. Garrett, as trustee for E. S. Truitt, conveying the W. ½ of lot 20, in Saighman Place, an addition to Kansas City. This note was by E. S. Truitt indorsed "without recourse," and sold to the Mills heirs, Mrs. Dorothy Mills, guardian, for whom E. B. Field was the trusted agent in purchasing and handling such paper and collecting the interest thereon. On the 24th day of September, 1900, Charles E. Prather and Laura E. Prather, who were then husband and wife, acquired said lot by deed from Joseph Lorie subject to the said incumbrance of $750, and as a part of the purchase price assumed and agreed to pay said indebtedness of $750. The evidence tends to show that Charles E. Prather paid the interest from time to time through the firm of Truitt & Co., except the last three semiannual installments of interest, which were paid by Prather to E. B. Field. It appears that when Prather paid the semiannual interest due on the note in December, 1902, he asked Field what would be the prospect of renewing the note when it fell due in June, 1903, and was told by Field that in the next six months he ought to be able to save $75 or $100, and he (Field) would renew the balance for three years for $10. Prather then told him he might be in a position to pay the note off.

In March, 1903, Charles E. Prather filed suit for divorce against his wife, Laura, which was returnable to the April term, 1903, of the circuit court of Jackson county. The defendant E. E. Hairgrove was his attorney in bringing the suit. On the 18th of April, 1903, at the April term of said court, the court allowed Laura E. Prather $150 for alimony pendente lite. Mrs. Prather filed a cross-bill in said action for divorce, and on October 16, 1903, at the October term, 1903, the court dismissed Prather's petition for a divorce because he had not complied with the order of the court to pay the $150 alimony. Afterwards, on October 31, 1903, Mrs. Prather was granted a divorce on her cross-bill and was given the custody of her children and a judgment for $250 alimony and $16 per month from December 1, 1903, for seven years. In the meantime the transactions out of which this suit originated occurred.

On the part of the plaintiff, E. B. Field testified that he held this note for $750 as the agent of Dorothy Mills, the guardian of the Mills heirs. He testified that on or about the 13th of May, 1903, a Mr. Stewart, a representative of E. S. Truitt & Co., a real estate firm, came to his office and said to him that Prather wanted to pay the Hicks note, and was told by Field that, if Prather wanted to pay it off, he would have to...