Ryan v. Stubblefield, 32122.

• Decision Date: 17 November 1936
• Docket Number: No. 32122.,32122.
• Parties: RYAN et al. v. STUBBLEFIELD et al.
• Court: Missouri Supreme Court

100 S.W.2d 444

RYAN et al. v. STUBBLEFIELD et al.

No. 32122.

Supreme Court of Missouri, Division No. 2.

November 17, 1936.

Rehearing Overruled December 23, 1936.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

Suit by Thomas Ryan and wife against William H. Stubblefield and others. From a decree for plaintiffs, defendants appeal.

Affirmed.

Frank X. Hiemenz, of St. Louis, for appellants.

Charles M. Hay and John T. Hicks, both of St. Louis, for respondents.

WESTHUES, Commissioner.

This case comes to the writer on reassignment. The respondents, Thomas Ryan and his wife, Florence Ryan, brought this suit in equity to cancel a certain deed of trust, on the theory that the deed of trust was a forgery and therefore void. Defendants in the case were William H. Stubblefield, named as trustee in the deed of trust, Nicholas Martin, alleged beneficiary, Martin-Stubblefield, Inc., and South Grand Loan & Investment Company, alleged holder of the deed of trust at the time of filing suit. The answer of the South Grand Loan & Investment Company alleged that it was the holder of the deed of trust and the notes therein described; further, that it had purchased the notes and deed of trust before maturity, without notice of any defects; that the balance due on said notes was $2,913.75. The trial court entered a decree for plaintiffs, and defendants appealed.

The record discloses the following state of facts: Curt J. Shoemaker and his wife were the owners in fee of lot 33, in block 4, of McDermott's Wilmington Place addition, known by street number as 905 Fillmore street in the city of St. Louis, Mo. The property will hereinafter be referred to by street number. While the Shoemakers owned the property, they placed a deed of trust thereon securing the payment of an indebtedness in the sum of $6,500. The validity of this deed of trust was not questioned. Thereafter, and on the 14th day of November, 1928, the property appeared to be in the name of one Alvin Schenk. On this date the deed of trust, which is the subject matter of this litigation, was purported to have been executed by Alvin Schenk, securing an indebtedness of $3,500. The deed of trust shows that it was acknowledged before C. A. Frentrop. The notes described in the deed of trust were made payable to Nicholas Martin and were made payable at the offices of Martin-Stubblefield, Inc. The deed of trust was filed for record on the 15th day of November, 1928. The notes described in the deed of trust, purported to have been signed by Alvin Schenk, were indorsed without recourse by Nicholas Martin. The blank forms were furnished by Martin-Stubblefield, Inc. A check, dated November 15, 1928, in the sum of $2,975, made payable to Frentrop and indorsed by him, signed Martin-Stubblefield, Inc., by Nicholas Martin, its president, was introduced in evidence, disclosing that the notes and deed of trust were discounted at 15 per cent. How Frentrop came into possession of the notes and deed of trust, purported to have been executed by Schenk, is a mystery. That question will be discussed later in the case. A clerk who was employed by Martin-Stubblefield, Inc., and the South Grand Loan Company testified that it was understood, at the time the notes were purchased, that Frentrop should be notified when the notes became due and that he was to pay the notes.

Later, about June, 1929, Frentrop began negotiating with the plaintiffs for the sale of the property located at 905 Fillmore. A deal was closed on July 20, 1929, wherein the Ryans purchased the Fillmore property and paid cash in the sum of $5,500, and also executed a deed to a cottage they owned on Pennsylvania avenue. The deed of trust of $6,500, which existed against the Fillmore property, was released. Plaintiffs furnished the cash to discharge this indebtedness. The evidence showed, beyond doubt, that Frentrop willfully and deliberately concealed from the plaintiffs the fact that the 905 Fillmore property was incumbered by the second deed of trust, which is the subject matter of this litigation. Frentrop, after this sale, continued for a number of months to pay the installments notes as they became due. About April 7, 1930, plaintiffs received a notice from the Tower Grove bank that an installment note of $63.50 was due. Investigating the matter, plaintiffs discovered the...