Quinn v. McCallum

• Decision Date: 02 March 1914
• Citation: 165 S.W. 1115,178 Mo.App. 241
• Parties: J. D. QUINN, Appellant, v. JAMES W. McCALLUM et al., Respondents
• Court: Kansas Court of Appeals

165 S.W. 1115

178 Mo.App. 241

J. D. QUINN, Appellant, v. JAMES W. McCALLUM et al., Respondents

Court of Appeals of Missouri, Kansas City

March 2, 1914

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

AFFIRMED.

Judgment affirmed.

Sharp Sharp & Sharp and Ed. A. Aleshire for appellant.

T. A Witten for respondents.

OPINION

ELLISON, P. J.

--This action was instituted to enjoin the sale of certain real property by the trustee in a deed of trust. On trial of the merits the injunction was dissolved, and plaintiff has appealed.

It appears that on April 29, 1912, one Griggs executed a note for $ 1200 payable to one Bowen and that the latter endorsed it in blank, without recourse, giving it into the possession of Griggs, and the latter transferred it to the Fidelity State Bank of Kansas City, Kansas. Afterwards the bank sold the note to plaintiff. There was evidence tending to show that the bank acquired the note on April 30th and that the date of plaintiff's getting it from the bank was August 9th.

But it was shown in behalf of defendant that another note, of same date and amount and similar in all respects, appearing to be secured by the same deed of trust was executed by Griggs to Bowen and was negotiated by the latter to defendant on the next day, April 30th, the deed of trust being delivered with the note.

So it appears that a note and deed of trust to secure it was executed in duplicate. One of these was endorsed in blank by Bowen the payee and left with Griggs the maker and he sold to the bank and the latter sold it to plaintiff. The other was sold and endorsed to defendant by Bowen.

The law is that where a transaction concerns one note secured by a mortgage or deed of trust and duplicate notes are executed, the one first negotiated to an innocent purchaser carries the mortgage security. [Southern Com. Bank v. Slatterly, 166 Mo. 620, 66 S.W. 1066.] In Pouder v. Colvin, 170 Mo.App. 55, 156 S.W. 483 we had a case of duplicate notes, but the points made there are not found in this case. In this case plaintiff claims that defendants (the trustee in the deed of trust and one Fradenburg) should be enjoined from selling the real estate to pay the note held by Fradenburg, for the reason that the bank from which he (plaintiff) obtained the note he holds, bought it of Griggs before Fradenburg bought his note from Bowen; and that, therefore, the deed of trust went with it and he, and not defendant, is the owner with right to foreclose.

We have examined the evidence and find ourselves unable to say that plaintiff proved his case at the trial. There was evidence in his behalf tending to show that the bank got the note of Griggs on the 30th of April, 1910. So there is evidence that Fradenburg got his note from Bowen on that day and there is nothing to show that plaintiff got his first. On the contrary...