Russell v. Wyant
| Decision Date | 21 May 1923 |
| Citation | 253 S.W. 790,214 Mo.App. 377 |
| Parties | EMMA RUSSELL, Appellant, v. CLAUDE WYANT, et al., Respondents, VICTOR E. SCHUTTE, Intervenor |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. B Buckner, Judge.
AFFIRMED.
Judgment affirmed.
Robert H. Worline and Henry S. Julian for appellant.
Rozzelle Vineyard & Boys and James G. Smith for respondent.
--This is an action to enjoin the foreclosure of a second deed of trust securing a note in the sum of $ 3020. At the conclusion of the evidence the chancellor dissolved the temporary injunction and rendered judgment against the plaintiff and in favor of the intervenor. Plaintiff has appealed.
The facts out of which this controversy arose are as follows: On April 30, 1919, plaintiff entered into a contract with one Claude Wyant in the City of Toledo, Ohio, wherein they agreed to exchange certain property. Wyant contracted to convey to plaintiff, with some other property, a certain apartment in Kansas City, Missouri. The apartment was to be conveyed subject to two mortgages aggregating $ 11,000. Plaintiff agreed to convey a farm which she owned in Ohio subject to a mortgage. On the day of the making of this contract there was a first mortgage upon the Kansas City property held by the Jackson County Savings and Loan Association for about $ 8000, calling for monthly payments. After making the contract and before the deeds were exchanged Claude Wyant, who owned the Kansas City property, caused Deane J. Wyant, his cousin, who held the title to the property, to execute a note in the sum of $ 3020 and a second deed of trust securing the same in favor of Samuel Wyant, father of Claude, the latter being the real beneficiary. This second note was dated Kansas City, April 23, 1919, and was made payable at the Dime Savings Bank Company of Toledo, Ohio, on July 1, 1920, with interest at the rate of eight per cent payable monthly. The note recited, There was no consideration for this second note and mortgage, the same being made solely for the convenience of Claude Wyant who was the real owner of them.
Thereafter Claude Wyant returned to Toledo, Ohio, and on May 6, 1919, met plaintiff in a bank in that city for the purpose of exchanging deeds to be executed under the exchange contracts. Plaintiff made a deed to the Ohio farm to Samuel Wyant. The latter was not present but Claude Wyant testified that he (Claude) was the agent of his father in all of these transactions. Claude Wyant testified that at the meeting at the bank plaintiff said she would not close the deal unless the terms of the $ 3020 note were changed; that there would have to be an extension of time for the payment of the note and the interest lowered. Claude testified that he agreed to extend the note on behalf of his father and that at the dictation of Mr. Jones, the agent of plaintiff, he wrote the following endorsement, which appeared on the back of the note:
"Toledo, May 20th, '19 I hereby certify that this within note is extended as follows: $ 1020 due May 16th '21; $ 1,000 due November 16, '21; $ 1,000 due May 16, '22; interest to be 6 per cent, payable semi-annually."
That he first wrote this endorsement with lead pencil but immediately traced it with ink in the presence of plaintiff and Jones; that the deal was closed on this basis.
Plaintiff, however, testified to a different state of facts in regard to the transaction had at the Toledo Bank, which were corroborated by Jones and, in part, by two other witnesses testifying in her behalf. Plaintiff's version of what happened was that she objected to the form of the note which called for interest payable monthly at eight per cent and demanded that the payments be extended to 1922, 1923, 1924 instead of becoming due on July 1, 1920, as provided in the note; that Claude Wyant agreed to make this extension but that plaintiff and the banker told Claude that such extension would be invalid unless it was made by Samuel Wyant, the holder of the note and Deane Wyant the maker; that Claude Wyant stated that whatever he did was all right with his father and that Claude scribbled a number of proposed agreements on the back of the note in lead pencil. Jones testified that the way the agreement finally read was that the payments were to be in 1922, 1923, and 1924 instead of 1921, 1922, and 1923 as written on the back of the note by Claude. Before the transaction was consummated Claude Wyant stated that he must go across the street to a bucket shop and that he would be back in a few minutes. He left some papers including the deed to the flats. He never returned but recorded the deed to plaintiff's property. Plaintiff testified that when Claude left he handed her a "bunch" of papers to look at and when she opened them there was nothing in them that she was interested in except a deed to the apartment in Kansas City.
On December 20, 1919, plaintiff filed a suit in the Court of Common Pleas of Lucas County, Ohio, against Claude Wyant for breach of the terms of the exchange contract, alleging that while she had complied with the terms of the contract on her part that defendant had failed to comply with his part in that he had not conveyed to her certain property other than the Kansas City apartment that she was to get under the exchange contract; that he had deeded the Kansas City property to her but since that time had collected the rents without her consent and had fraudulently appropriated them to himself. At the trial of this case there was a judgment in the sum of $ 3000 rendered against defendant and in favor of plaintiff. On the 11th day of February, 1921, she caused execution to be issued upon said judgment which was returned nulla bona. Thereupon she filed in said court a suit in equity against said Claude Wyant founded upon and in aid of the execution in the other suit, which had for its object to impress all of the property of the defendant in order to satisfy her judgment. In the latter suit she alleged that Claude Wyant was the real owner of the beneficial interest in the second deed of trust and note on the Kansas City property; that defendant was threatening to foreclose said mortgage without satisfying the judgment of plaintiff, and asked that defendant be enjoined from foreclosing the mortgage or to bring any action to secure satisfaction of the note or to convey or assign the same to any other person for the purpose of selling defendant's interest in the same, or to bring any action in the name of such person to recover upon said note or to foreclose the mortgage. A summons in this last-mentioned suit was issued, directed to the sheriff of Lucas County, Ohio, who deputized a deputy sheriff of Jackson County, Missouri, to serve the same upon Claude Wyant, which was done on the 16th day of April, 1920, in Kansas City, Missouri. No other service was had upon defendant in that case, and it is not contended that such service was sufficient.
On September 29, 1920, plaintiff filed a suit against Claude Wyant and the sheriff of Jackson County, Missouri, in the circuit court of said county alleging that she was the owner of the flats in Kansas City subject to a first deed of trust and a second deed of trust which latter deed in the sum of $ 3020 was given by Deane J. Wyant to Samuel Wyant, payable on or before July 1, 1920, (Italics ours); that all of the interest had been paid on the note except the last semiannual interest installment, which she had been unable to pay for the reason that the note had not been left at the Toledo bank for collection and the bank had refused to receive the payment for the interest and Claude Wyant had refused to receive the same when mailed to him; that the principal note was not due and that the sheriff had advertised the property for sale under the second deed of trust and would sell the same unless enjoined from so doing. It seems that nothing came of this suit but that the interest was thereafter paid and accepted by Claude Wyant, the note on the back thereof contained the following endorsement:
In the early part of April, 1920, Claude Wyant was in Kansas City and being acquainted with George W. Goldman, a broker, asked Goldman if he would sell for him the note in question. On or about the 15th day of April, 1921, Goldman solicited intervenor Schutte to buy the note. Schutte had bought notes through Goldman before and stated to him that if he, Goldman, thought the paper was good "to investigate and see that the title was all right and I will investigate the security." Goldman made an extended examination as to the note. He made an unsuccessful attempt to find plaintiff and visited the owner of the first deed of trust and there interviewed a Mr. Worline, its attorney and who is now one of the attorneys for plaintiff. Goldman employed an attorney to examine the...
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