Samuel v. Frederick

• Decision Date: 05 June 1924
• Docket Number: No. 24357.,24357.
• Citation: 262 S.W. 713
• Parties: SAMUEL et al. v. FREDERICK et al.
• Court: Missouri Supreme Court

262 S.W. 713

SAMUEL et al. v. FREDERICK et al.

No. 24357.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by W. L. Samuel and others against Carrie E. Frederick and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. B. Harris and A. E. Elliott, of Nevada, Mo., for appellants.

J. H. & W. E. Bailey, of Carthage, and Chas. E. Gilbert, of Nevada, Mo., for respondents.

HIGBEE, C.

Action to cancel deed and in ejectment. Judgment for plaintiffs, and defendants appeal.

This action was brought in the circuit court of Vernon county, returnable to the October term, 1921. A change of venue was taken to the circuit court of Jasper county, where an amended petition was filed. The first count avers that the plaintiffs, W. L. and Bessie E. Samuel, are husband and wife, and were, on August 1, 1920, and long prior thereto, owners by the entirety of the north half of lot 46, in block K, according to Wood & Blanchard's map of the city of Nevada, Vernon county, Mo.; that prior to said date plaintiff W. L. Samuel, desiring to sell said land, and expecting shortly to remove to California, signed his name to a blank printed deed, and left it with his son, Edwin Samuel; that he had indicated to Harris & Son, real estate agents in Nevada, that plaintiffs desired to sell said property, but informed said firm that before closing the deal they should advise him, the said plaintiff, of the terms of the proposed deal; that Harris & Son, on or about November 12, 1920, without consulting or advising with said plaintiff, filled out the said blank form of deed so signed by W. L. Samuel, inserting therein the names of plaintiffs as grantors, the name of Carrie E. Frederick as grantee, the consideration and the description of the land as aforesaid; that the signature of Bessie E. Samuel was forged to said deed without the knowledge or consent of plaintiffs, and said deed was delivered to defendants and possession taken by them; that plaintiffs received no consideration therefor; and that said deed was thereupon filed and recorded in the recorder's office of Vernon county, and is a cloud on plaintiff's title. The prayer is that the deed be canceled.

The second count is in ejectment. The answer avers that Carrie E. Frederick is the owner of the tract in fee and in possession, but denies all other allegations of the petition, and prays the court to determine title.

It is agreed that plaintiffs acquired title to the lot in controversy by a warranty deed from L. L. Goldsmith and wife, dated September 8, 1919, which was read in evidence, conveying said tract to plaintiffs, as husband and wife, in consideration of the sum of $1,250, subject to a first deed of trust for $475, a second deed of trust for $250, the interest thereon since May 11, 1919, and taxes then not due and payable. Plaintiffs took and retained possession of the premises by themselves and their tenant until November 12, 1920, when defendants took possession under a deed purporting to have been executed by plaintiffs on August 1, 1920.

W. L. Samuel had been in the grocery business in the city of Nevada for many years. Mrs. Samuel assisted him as clerk in the store. They owned three properties in Nevada. He sold his stock of groceries to his son Charles, and on May 27, 1920, left for California, expecting to make that state his home. A day or two before this time he went to the office of J. B. Harris & Son and signed his name to three printed blank warranty deeds. He left these with his son Edwin. Edwin and Charles were his sons by a former marriage. On July 23, Mrs. Samuel, with the plaintiffs' daughters, .Mary and Ducille, left Nevada to join her husband in California, leaving the property in controversy in the possession of their tenant. About January 3, 1921, Mr. Samuel sent J. B. Harris a draft for $19 to apply on interest and commission on the $475 loan secured by the deed of trust on this property. Under date of January 7, 1921, J. B. Harris & Son wrote Mr. Samuel, returning the draft, and stating they had "sold the place and Charles delivered the deed two months ago and it is all closed up, so there is no interest due. We supposed he had written or remitted to you before this, and were quite surprised to get this draft." This was the first information plaintiffs received of the sale of the lot to Mrs. Frederick. Thereupon they corresponded with their attorney, and this action followed.

As defendants contend the deed in question was executed by plaintiffs, it will simplify matters to consider the evidence on controverted points in reverse order.

Burnie Harris, son of J. B. Harris, testified, in substance:

That Mr. Samuel asked them to sell this property. The last time he talked to them about it was the night before he left for California. That Samuel came to the office one afternoon and signed and acknowledged three blank warranty deeds. We got in the car and drove down to the house, and she (Mrs. Samuel) signed her name to it (referring to the deed in question). The two little girls were present and the baby, and I took her acknowledgment, and Will (Mr. Samuel) said, `We won't do anything more to it." He put them in his pocket, and I got in my ear and came back up town. Charles Samuel brought the deed to our office the day we closed the deal with the Fredericks. I filled it up on the typewriter and filled in the acknowledgment. The only mistake, I tried to put the date of the acknowledgment when they were both here, and there is where we failed. That is the only loophole in the whole business. I saw her sign her name to that deed. It was two or three days before he went to California.

Cross-examination:

I gave my deposition in this case June 11, 1921. I filled in the acknowledgment November 12, 1920. They were not before me on that date. The deed was in blank, no consideration, no description, grantees, nor mention of any mortgages. Mrs. Samuel signed only one deed, the one that conveyed the Frederick property. Mr. Samuel never gave us any instructions about filling out that deed. The only reason I had for filling out the deed (was that) I took their acknowledgments. I sold the property for Charles Samuel. I had no instructions from them (plaintiffs). I took their acknowledgment to a blank printed form of deed never saw the deed again until Charles Samuel brought it into our office. I heard Will Samuel tell the two boys the night before he left for California to sell any of that property and pay themselves. He gave me no instructions. I got $50 out of it. The consideration was $1,000. Father did all the figuring. I don't know how much money passed.

J.B. Harris testified:

W.L. Samuel talked to me about selling the property. I held a mortgage for $475 on it, S per cent, and 2 per cent. commission for five years, making $47.50. I did have a loan on it for $250; that was released in January, 1919. When the deed was transferred to Mrs. Frederick and the money paid, I did the figuring and division of the money. Mrs. Samuel was never in my office to my knowledge. W.L. Samuel was there quite a good deal. He was trying to get the firm to sell his property. When this deal was closed I knew both the Samuels were in California. I never saw the dead until it was placed on my desk by Charles Samuel. I saw the signatures and glanced down and saw the description. I didn't know Burnie had filled it in, but I am satisfied he did the work. This deal was closed November 12, 1920. I did not notify W. L. Samuel. He placed the property in our hands for sale before he went away. I didn't notify either one of them.

There is no question that the defendants bought the property in good faith. On November 9, 1920, Mr. Frederick gave J. Burnie Harris a check for $50 to apply on the purchase price. Frederick and his wife went to the office of J. B. Harris & Son on November 12; they (the firm) called Charles Samuel; he came and brought in the deed, and J. Burnie Harris filled it out. J. B. Harris told them the deed was all right, and Mr. Frederick gave Charles Samuel a check for $447.17 payable to Charles Samuel; the deed was delivered to them, and they took possession. They made no inquiry as to who were the owners. They knew the plaintiffs were in California at the date of the acknowledgment of the deed.

The deed was read in evidence. It recites a consideration of $1,000, and is made subject to a deed of trust for $475 and commission note $47.50. It purports to be acknowledged by plaintiffs before J. Burnie Harris, notary public for Vernon county, Mo., on August 1, 1920, and under his notarial seal. It was filed for record on November 12, 1920.

Charles Samuel, age 22, referring to the purchase of the property in litigation by his father from Goldsmith, testified:

I had a Ford sedan which I bought from Anderson for $700. I owed him $200 on it. Father and Ed and I were talking about buying this place. My brother Ed said he would put $200 in the place. The next evening my father gave me a check for $200 which he said Ed gave him. I got the car, and turned it over to Mr. Braden to look at for Mrs. Goldsmith. I told father I had turned the car over to Braden, and if it was satisfactory he could finish the deal and live in the place as long as he wanted it, but if anything came up, and I wanted to trade, I would claim that privilege. I bought the property September 11, 1919. I was 19. I bought father's grocery business; paid him cash. I had the pleasure of paying a few bills he should have paid. When he decided to go to California he borrowed $100 from Burnie Harris; I went on his note and paid it. When father left for California, he told me he had left deeds to these two places (the property in question and another where plaintiffs lived before they went to California) with my brother Ed, with instructions when he sold either place to straighten up with me.

Referring to the deed in...