Simmon v. Marion

• Decision Date: 06 February 1950
• Docket Number: No. 21275,21275
• Citation: 227 S.W.2d 127
• Parties: SIMMON v. MARION et al.
• Court: Missouri Court of Appeals

Page 127

227 S.W.2d 127

SIMMON v. MARION et al.

No. 21275.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1950.

Gerald Cross, Lathrop, R. H. Musser, Plattsburg, for appellant.

Robert H. Frost, Plattsburg, Watkins & Watkins and O. W. Watkins, Jr., St. Joseph, for respondents.

BOUR, Commissioner.

This is an action in equity to set aside the release of a deed of trust and to foreclose the same. It is alleged that plaintiff is the owner of three promissory notes executed by William A. Simmon and payable to C. E. Simmon, plaintiff herein; that on June 27, 1932, the said William A. Simmon and his wife executed a deed of trust upon certain land to secure the payment of said notes, which deed of trust was duly recorded; that on October 22, 1938, the defendants Florence (Eisiminger) Marion and Grace Moran induced their father, William A. Simmon, to execute a warranty deed conveying to them the land described in the deed of trust, which deed did not mention the deed of trust; that on November 12, 1938, the same defendants 'in a fraudulent manner and unlawfully procured without conveyance or assignment to them or to said William A. Simmon and with him brought said notes to the recorder's office and requested and induced E. C. James, defendant herein, to release the same on the margin of said record'; that at all times since the execution and delivery of said notes the plaintiff has been the sole owner thereof, and that he has never at any time transferred or conveyed the same; that said William A. Simmon died in August 1942, and that the amount due on the notes is $2,000, plus interest. The prayer of the petition is to set aside the release of the deed of trust, ascertain the amount due on the notes, and foreclose the deed of trust.

The answer of defendants Florence Marion and Grace Moran (1) denied the execution of the notes and deed of trust, and alleged as alternative defenses (2) that if the notes were executed they were paid in full, and (3) that the notes were not valid obligations of said W. A. Simmon because there was no consideration for them, and that 'said notes were for a mere pretended indebtedness and were never delivered' to plaintiff. The defendant Fred Kerns, who was named as trustee in the deed of trust, and defendant E. C. James, who signed the marginal release of the deed of trust, are nomimnal parties and have no interest in the litigation.

The trial court found the issues in favor of defendants and plaintiff appealed to the Supreme Court. That court transferred the case to this court, holding that title to real estate is not involved. Simmon v. Marion et al., 358 Mo. 888, 217 S.W.2d 537.

Plaintiff contends that there is insufficient evidence to support the trial court's decree. While defendants Florence Marion and Grace Moran pleaded several defenses, as hereinbefore recited, the record shows that the main issue in the case is whether W. A. Simmon received from plaintiff any consideration for the notes in question. Defendants state in their brief that their 'main defense' was that the notes and deed of trust 'were without consideration, and were prepared as a part of a scheme concocted by W. A. Simmon, purportedly the maker of the notes, in which scheme the appellant was a party, together with James B. Moran, deceased husband of the respondent, Grace Moran, in order to place an encumbrance on the real estate to protect it against creditors of the said W. A. Simmon.' With this in mind we will summarize the evidence.

The record shows that about 1909, W. A. Simmon acquired a ninety acre tract of land in Clinton County, Missouri, near the town of Hemple. He had two sons, Clarence E., the plaintiff herein, and Elmer; and two daughters, Florence Marion and Grace Moran, the defendants in the case. Florence Marion, formerly Florence Eisiminger, was married after the suit was instituted. Grace Moran is the widow of James B. Moran, who died in August 1940. W. A. Simmon's first wife died in 1924, and in 1926, he married a widow, Mrs. Mary E. Jackson. W. A. Simmon died in 1942; his second wife died in 1935.

In June 1932, W. A. Simmon and his second wife, Mary E., executed a deed of trust conveying the said ninety acre tract of land to Fred Kerns, as trustee, which instrument purported to secure the payment of seven promissory notes, viz.: a note (Exhibit C) for $500, dated June 1, 1924; a note (Exhibit D) for $750, dated May 15, 1928; a note (Exhibit E) for $750, dated April 1, 1926; all of said notes being payable to C. E. Simmon one year after date with 6% interest; and three notes (Exhibits 2, 3, and 4) in the total sum of $2,000, dated April 15, 1925, July 1, 1927, and August 15, 1929, respectively, and payable to James B. Moran one year after date with 6% interest. All of the above described notes purport to have been executed by W. A. Simmon. A provision in the deed of trust which was recorded in Clinton County, extended the time for payment of the notes to June 27, 1935. This suit was filed on September 21, 1942. There is no indorsement by the payee on any of these notes, but notations in the back of each purport to be entries showing that the interest was paid annually up to 1930. Across the face of each note, and apparently in the same handwriting, are the words 'Paid in Full.' Stamped on the back of each note are the following words and figures: 'Cancelled, Nov. 12, 1938, Jno. W. Porter, Ex-Officio Recorder of Deeds, Clinton County, Mo.' The deed of trust also purported to secure a note for $3,500, dated December 10, 1926, and payable to Mary E. Simmon one year after date. This note was not offered in evidence, but the record in the recorder's office shows the following: 'Note for $3500 marked paid presented Oct. 22, 1938 and released.' Plaintiff's brief states that this note is not in controversy.

The record also shows that on October 22, 1938, W. A. Simmon, in consideration of one dollar, executed a warranty deed conveying the ninety acre tract of land to his daughters, Florence (Eisiminger) Marion and Grace Moran, 'free and clear of any encumbrances,' which deed was recorded in Clinton County by Grace Moran.

The plaintiff offered the following evidence to show that the release of the deed of trust was void: J. Ledgerwood, the deputy recorder, was called by plaintiff to identify the marginal release which reads: 'The notes secured by the within Deed of Trust were produced and cancelled in my presence this 12th day of November, 1938. John W. Porter, Recorder, By J. Ledgerwood, Deputy.' 'The Debt mentioned in the within Deed of Trust having been fully paid and discharged, I hereby acknowledge satisfaction in full, and release the property herein conveyed from the lien and incumbrance thereon, this 12th day of November, 1938. Emsley C. James, Assignee of the note. Attest: John W. Porter, Recorder, by J. Ledgerwood, Deputy.' Emsley C. James, the probate judge of Clinton County, testified as a witness for plaintiff that W. A. Simmon brought the three C. E. Simmon notes (Exhibits C, D, and E) to him and requested him to sign the marginal release of the deed of trust; that solely for the accommodation of W. A. Simmon, he went to the recorder's office and signed the release; that when he saw the notes they were marked 'Paid in Full'; that the notes were not indorsed or assigned to him; that he did not own the notes and had no interest in them. The three James B. Moran notes (Exhibits 2, 3, and 4) were not specifically mentioned by this witness but, according to the record, they were evidently presented and cancalled at the same time.

Plaintiff testified on direct examination that he lived in El Dorado, Kansas, from October 1920 to March 1932. As tending to show he was able to help his father financially, he testified that while he was in Kansas he earned about $200 a month and made a profit of $500 on a real estate transaction. He also testified on direct examination, over repeated objections of defendants based on the dead man's statute, that the signatures on the notes (Exhibits C, D, and E) and the words 'Paid in Full' on each note were in the handwriting of his father, W. A. Simmon; that the dates on said notes were correct; that his father delivered the notes to him on said dates when plaintiff was in Hemple on his vacation; that the consideration therefor was money loaned by plaintiff to his father; that the notations or indorsements on the back of the notes which show the payment of the interest were made by plaintiff, and that 'they were correctly made'; that the principal of said notes had never been paid; that he never sold or indorsed the notes to anyone; that he kept the notes at a bank in El Dorado, Kansas, until he returned to Missouri and moved on the farm with his father in 1934; that thereafter he kept the notes at the farm in his father's tin box which also contained papers belonging to his father; that when he returned to Kansas in 1941, he left the notes in the tin box; that after the death of his father he authorized his brother Elmer to take possession of the notes, and that Elmer delivered the notes to him. The three notes (Exhibits C, D, and E) were offered in evidence.

On cross-examination plaintiff testified, first, that his father paid the interest each year up to 1930, as shown by the indorsements on the back of each note, and that such indorsements were made by plaintiff, which was consistent with his testimony on direct examination. However, plaintiff then testified that he went to Hemple, Missouri, on June 1 of each year and there collected from his father the interest due on June 1, and indorsed the payments in his own handwriting on plaintiff's Exhibit C; that his father sent him checks in payment of the interest on Exhibit D and Exhibit E; that the interest payments on Exhibit D were indorsed on that note by plaintiff, but that the indorsements on Exhibit E were written by his father, at the direction of plaintiff. If plaintiff's father made the...