Rubey v. Missouri Coal & Mining Co.

• Decision Date: 02 March 1886
• Citation: 21 Mo.App. 159
• Parties: WEB. M. RUBEY, ASSIGNEE, ETC., Respondent, v. THE MISSOURI COAL AND MINING COMPANY ET AL. WILLIAM F. FORCHT, INTERPLEADER, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 159

WEB. M. RUBEY, ASSIGNEE, ETC., Respondent, v. THE MISSOURI COAL AND MINING COMPANY ET AL. WILLIAM F. FORCHT, INTERPLEADER, Appellant.

Court of Appeals of Missouri, Kansas City.

March 2, 1886

APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

Statement of case by the court.

This is an action brought by the assignee of the Macon Savings Bank for the purpose of foreclosing a deed of trust, dated August 24, 1878, executed by the Missouri Coal & Mining Company for the purpose of securing the payment of a promissory note for ten thousand dollars given by said company to the said Macon Savings Bank. In the petition it is also alleged as follows:

" Plaintiff further states that he is informed and believes that subsequent to said twenty-fourth day of August 1878, the said Missouri Coal & Mining Company made executed and delivered to the defendant, Ben Eli Guthrie another and further deed of trust, whereby all of the said real estate and property was conveyed to secure bonds issued by the said Missouri Coal & Mining Company, amounting to forty thousand dollars, which said bonds were intended by said Missouri Coal & Mining Company to be negotiated and sold for the purpose of paying off and discharging said bank and other debts of said coal company.

That said bonds were never negotiated and sold, as plaintiff is informed and believes, but that a number of them amounting to $27,000.00, were deposited and are held as collateral security for other debts and demands, due from said coal company to said savings bank.

That he is informed and believes that a portion of said bonds were heretofore deposited by the president of said coal company, with the said Farmers' & Traders' Bank amounting to the sum of $13,000.00, as collateral security for sums of money due from said coal company to said Farmers' & Traders' Bank.

That this plaintiff has no knowledge or information as to whether any of such bonds are held by any other parties.

That plaintiff is informed and believes that the said defendants, James Epperson and Orr Sanders, claim some interest in the said real estate and coal mines, by virtue of an assignment to them of a lease to said coal lands, made by the said C. G. Epperson, as president of the said Coal & Mining Company, wherefore they are made parties defendant, in order that their pretended claim and interest may be examined and concluded.

Wherefore the plaintiff prays judgment for the amount of said note, to-wit: Ten thousand dollars, with ten per cent. per annum interest thereon, compounded annually; that the equity of redemption of the said Missouri Coal & Mining Company, in and to said lands, be foreclosed; that the amount of plaintiff's lien, as such assignee, be adjudged and decreed as first lien on said lands and property, as against all the defendants; that said subsequent deed of trust to the said Guthrie be declared subject to the plaintiff's said deed of trust, and that all of the said real estate and property be sold to pay off and satisfy the judgment so rendered, free from all claims and demands; and that the proceeds be applied first, to pay off and satisfy the said judgment, and that the balance, if any, be applied in payment of the bona fide holders of said bonds, for value. That if it shall be found necessary for the safety and securing of plaintiff, the court appoint a receiver to take charge of, manage and control the said coal property and the said coal mines, with its machinery and apparatus, pending this suit, and until the final order and decree of this court shall be rendered; for general relief, and for such other and further judgments, orders and decrees, as may be just and proper."

The Farmers' & Traders' Bank was a private, unincorporated banking association under the laws of this state, and it, as well as the members composing it, were made parties defendant. The said bank had made an assignment to Samuel J. Wilson for the benefit of all its creditors, and said Wilson had duly qualified as such assignee. He was made a party defendant. Ben Eli Guthrie, the trustee in the deed of trust, executed to secure the bonds issued by the said Missouri Coal & Mining Company, of which bonds the said Farmers' & Traders' Bank was alleged to hold a number, resigned as trustee; and Ben F. Stone was duly appointed as trustee in his place by the circuit court, and, by order of the circuit court, was made a party defendant.

Said Stone made answer averring want of knowledge or information sufficient to form a belief as to whether the note sued on by plaintiff yet remained unpaid and due as alleged in the petition. Further answering, said Stone alleged the execution and issuance of forty thousand dollars of mortgage bonds by said Missouri Coal & Mining Company on April 30, 1881, and the execution on that date by said company of a deed of trust on certain real and personal property, a portion of which was covered by the plaintiff's deed of trust, for the purpose of securing the payment of said bonds, and a breach of said deed of trust. The answer continued as follows:

" That this defendant is informed and believes, that of the said bonds, the plaintiff, as assignee of the Macon Savings Bank, is the legal holder and owner of fifty-four thereof, amounting to the sum of twenty-seven thousand dollars, face value ($27,000.00). And that the defendant, Samuel J. Wilson, as the assignee of the Farmers' & Traders' Bank, is the legal holder and owner of the balance and remainder thereof, to-wit: Twenty-six thereof, amounting to the sum of thirteen thousand dollars, face value ($13,000.00).

And this defendant prays the court, that if it be found on the trial of this cause, that the note and deed of trust sued on by plaintiff yet remain unsatisfied, and that the said plaintiff's deed of trust ought to be foreclosed, then, that this, his answer, be taken and held as a cross action in said cause, and that judgment be rendered upon said bonds in favor of the respective holders thereof, as aforesaid, and that the said deed of trust to secure said bonds be foreclosed, and that the equity of redemption of the said Missouri Coal & Mining Company in and to the property conveyed be forever foreclosed. And that the property so conveyed to secure said bonds be sold under the orders of this court, for the purpose of discharging and satisfying the several judgments so rendered, and for other general and proper relief."

William Forcht, surviving partner and administrator of Thomas G. Sharp & Company, on his motion and by leave of court, became a party defendant, and filed his interplea, claiming certain personal property, to-wit: sixteen mules, by virtue of a third deed of trust executed by the said Missouri Coal & Mining Company on January 16, 1882, to secure the payment of said company's promissory note for the sum of $924.05 given to said Thomas G. Sharp & Company. The said mules were also claimed under the second deed of trust.

Forcht, the interpleading defendant, also attacked the first deed of trust, claiming that it had been satisfied upon the record prior to the execution of his, the third deed of trust. But inasmuch as the second deed of trust, which was made to secure the payment of forty thousand dollars, more than the value of the entire property, was in full force and effect, it is conceded by Forcht's counsel, that the only controversy is between the second and third deeds of trust as to the sixteen mules.

That part of the description of the second deed of trust touching the controversy is as follows:

" And, also, all equipments, machinery, implements, tools, instruments and fixtures of whatever kind or nature, that now are or may hereafter be, belonging or appertaining to said mines or any of them, or used in connection therewith."

The third deed of trust in express terms mentions sixteen mules.

At the time of the execution of the second deed of trust the Missouri Coal & Mining Company owned only seven mules. Nine of the sixteen mules claimed by Forcht were purchased by said company subsequent to the execution of said deed of trust, and prior to the execution of the third deed of trust.

Against Forcht the following oral evidence was introduced at the trial of the issues raised by the interplea:

" Thomas Wardell and Hopkins Evans testified that they were expert miners and operators of coal mines, and were acquainted with the mines of defendant, the Missouri Coal & Mining Company, and that it was impossible to operate or work said mines without pit mules, and the mules in question were pit mules, and were an essential part of the apparatus and equipments of said mines and which said mines could not be worked without pit mules."

Forcht introduced in evidence the deposition of Chas. G. Epperson, president of the Missouri Coal & Mining Company, in which said Epperson testified that he had not intended to include, and did not understand that he had included, the mules in the second deed of trust, which he had as said president executed. The court tried the issues presented by Forcht without the intervention of a jury, and decided them against him.

CHARLES P. HESS, for the appellant.

I. The mortgage sued on, for $10,000, dated August 24, 1878, being satisfied of record by proper parties, and no notice to the contrary coming to interpleader, or any of his co-partners, said mortgage could not be set up against him. Rev. Stat., sect. 3311; Chappell v. Allen, 38 Mo. 213.

II. The mortgage set up by defendant Stone, dated April 30, 1881 did not include the mules claimed by interpleader under his mortgage (dated January 16, 1882), he not having any notice beyond what the record imparted to him. Jones...