Snitzer v. Pokres

• Citation: 23 S.W.2d 155,324 Mo. 386
• Decision Date: 30 December 1929
• Docket Number: 27642
• Parties: Annie Snitzer v. Gertrude Pokres and Theodore Pokres, Appellants
• Court: Missouri Supreme Court

23 S.W.2d 155

324 Mo. 386

Annie Snitzer v. Gertrude Pokres and Theodore Pokres, Appellants

No. 27642

Supreme Court of Missouri

December 30, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed and remanded (with directions).

Seneca C. Taylor for appellants.

(1) If same be asked for in the pleadings of either party (in the case at bar by the defendant Gertrude Pokres in her cross-petition), it is the duty of the court to define ascertain and adjudge by its judgment, or decree, the estates, titles and interests of the parties to the suit and to award full and complete relief, whether legal or equitable. And such action is at law or in equity according to the issues tendered by the pleadings. Such requirement of the law is not met by decree merely defining the title of plaintiff only to be that of an undivided one-half of an undivided one-half in Lot 10, and leaving the title to three-fourths undetermined, where the petition of plaintiff claims an undivided half in fee and the cross-petition claims the whole in fee subject to an equitable mortgage. Jacobs v. Waldron, 317 Mo. 1133, 298 S.W. 773; Richards v Coal & Mining Co., 221 Mo. 173; Garrison v. Frazier, 165 Mo. 40; Powell v. Crow, 204 Mo. 481; Williamson v. Frazee, 294 Mo. 320; Laws 1909, p. 343; R. S. 1919, sec. 1970. (2) A deed absolute in form and terms, intended as security for the payment of a debt at the time of its execution, is a mortgage. Such intention may be shown by parol evidence, on the ground that the denial of the true character of the deed by the grantee is a fraud on his part. O'Neill v. Capelle, 62 Mo. 202; Cobb v. Day, 106 Mo. 295; Book v. Beasly, 138 Mo. 455; Reilly v. Cullen, 159 Mo. 322; Bright-well v. McAfee, 249 Mo. 562; Phillips v. Jackson, 240 Mo. 310; Commerce Trust Co. v. Foulds, 273 S.W. 229; Williamson v. Frazee, 294 Mo. 320; Constant v. Simon, 303 Mo. 203; Carr v. Carr, 52 N.Y. 251. (3) If at the time the instrument was executed, it was intended for security for a debt, then that character (of a mortgage) attaches to it and remains with it. Once a mortgage, always a mortgage. Williamson v. Frazee, 294 Mo. 320; Stephens v. Stephens, 232 S.W. 982; Reilly v. Cullen, 159 Mo. 322; Lipscomb v. Talbot, 243 Mo. 32; Sheppard v. Wagner, 240 Mo. 433; 1 Jones on Mortgages (6 Ed.) sec. 340. (4) If the party who owes the debt causes a conveyance to be made of any real estate in which he has an interest, to his creditor, for the purpose of securing the debt, the conveyance is a mortgage. In such case it makes no difference that the conveyance was not directly from the debtor to the creditor, but that such conveyance was by a third person, e. g. by the original owner. Sharkey v. Sharkey, 47 Mo. 543; Mayberry v. Clark, 317 Mo. 449, 297 S.W. 42; Carr v. Carr, 52 N.Y. 251.

Edward K. Schwartz for respondent.

(1) In reviewing a case in equity the appellate court, while not bound by the findings of the chancellor, will defer to such findings, especially where the evidence is conflicting. Reed v. Steward, 276 S.W. 12; Williams v. Hybskmann, 311 Mo. 332; Williams v. Peterson, 271 S.W. 1016; Pfotenhauer v. Ridgway, 307 Mo. 529; Bartlett v. White, 272 S.W. 944. (2) In construing a decree its entire scope and range will be considered and even pleadings may be referred to, to arrive at its true interpretation. Sanders v. Sheets, 287 S.W. 1069; McDonald v. Frost, 99 Mo. 44. (3) The use in the decree of the phrase "plaintiff is the owner . . . of an undivided one-half interest in and to the following described property located and situated in the city of St. Louis, State of Missouri; 'an undivided one-half interest in lot 10,'" etc., defines the extent of ownership as being an undivided one-half interest in the land described by metes and bounds. 18 C. J. 968; Downen v. Reyburn, 214 Ill. 342; Livingston v. Sea Board Air Line Co., 84 S.E. 303.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

Claiming to be the owner of an undivided one-half interest in a lot at 3330 and 3334 Washington Avenue in St. Louis, the plaintiff brought this suit to cancel a quitclaim deed thereto, executed by her to the defendant Gertrude Pokres on December 4, 1924, and recorded in Book 4085, page 559, in the office of the Recorder of Deeds of said city. Her petition recites she executed the deed for the purpose of putting the record title in the name of said defendant as a matter of convenience, with the understanding that the defendants would make a similar quitclaim deed back to her which she intended to withhold from record; but that after the conveyance first aforesaid the defendants wrongfully refused to reconvey to her except by deed reserving to them an option to purchase on certain terms and conditions, which option she was unwilling to give. Accordingly she prays the cancellation of her quitclaim deed, that the defendants be enjoined from collecting any rents upon said half interest in the premises, and for general relief.

The defendant Theodore Pokres, a real estate agent, is the husband of the defendant Gertrude Pokres. He was the promoter of the transactions which give rise to the controversy. The two defendants contend the defendant Gertrude Pokres owns the whole title to the lot and that the plaintiff has no interest therein except as equitable mortgagee. The lot was purchased in the first instance from C. E. Parker, who is the common source of title, and the deed was made to the plaintiff and one Lillie Birenbaum, sister of the defendant Theodore Pokres. That much is admitted. The plaintiff asserts the title was thus taken because she (and her husband) paid half the cash purchase money. The defendants say the money furnished by the plaintiff was advanced to them as a loan, and that her name was put in the deed as security therefor, and also to secure a certain additional commission or profit she was to receive. The defendants further maintain that when the plaintiff and her husband later executed to the defendant Gertrude Pokres the quitclaim deed in controversy it was in acknowledgment of the foregoing arrangement and that the quitclaim deed they tendered back and which the plaintiff refused to accept conformed to the actual rights of the parties.

The trial court found for plaintiff, cancelling the quitclaim deed. The defendants have appealed. Practically the sole question to be determined is one of fact -- how much money the plaintiff and her husband contributed to the purchase of the lot, and whether she was to be half owner or merely loaned the money. Lillie Birenbaum, the other grantee in the deed from C. E. Parker, has quitclaimed to the appellant Gertrude Pokres and does not figure in the case except incidentally. It is conceded that the appellant Gertrude Pokres owns the other half interest in the lot, the part not claimed by the respondent.

There were only five witnesses. The respondent and Samuel Snitzer, her husband, testified on her side of the case, and the appellant Theodore Pokres and Messrs. Jones H. Parker and Oliver C. Vogel for the appellants. Mr. Parker is the brother of C. E. Parker who sold the lot, and represented her in the matter. Mr. Vogel, real estate officer of the Savings Trust Company of St. Louis, drew most of the papers and took the acknowledgments. They testified mainly as to what was said by the parties when the sale was closed.

Samuel Snitzer and his wife, the respondent, operate a delicatessen shop in St. Louis. Theodore Pokres for some four years before the trial had been a real estate agent with offices in the Wainwright Building. Prior to that he was a plumber. All three were persons of German extraction. Mrs. Snitzer testified through an interpreter. The other two were not facile in expressing themselves in English. This makes it a little difficult to get a clear understanding of the facts, and the situation is further aggravated by the failure of both parties to offer in evidence and preserve in the record certain papers which would have aided in clearing up questions at issue.

The deed from C. E. Parker was dated April 23, 1923. The consideration therefor was $ 19,000, of which $ 12,000 was paid by a three-year six-per-cent note and first mortgage on the property signed by the two Snitzers and Lillie Birenbaum, and the balance of $ 7,000 in cash. The testimony for respondent was that she and her husband furnished half this cash as follows: a $ 500-check given by Samuel Snitzer to Theodore Pokres; $ 1399.10 in currency given by the respondent, Annie Snitzer, to Theodore Pokres; and a cashier's check for $ 1625 given by Samuel Snitzer to Theodore Pokres. All this together amounted to $ 3524.10.

The appellant Theodore Pokres testified he raised the entire $ 7,000 cash part of the consideration as follows: $ 2000 of his own money; $ 2500 borrowed from Samuel Snitzer; $ 1000 borrowed from his sister Lillie Birenbaum; and $ 1500 borrowed from the Savings Trust Company with Samuel Snitzer as signer on the note. His only obligation to the Snitzers growing out of the transaction, he says, was for this $ 2500 borrowed, and for $ 1000 profit or commission which he agreed to pay them out of the net rents from the property. We shall review the evidence touching these items more closely.

Samuel Snitzer testified that in March, 1923, the appellant Theodore Pokres suggested to him that he purchase the Parker property. They went to see it early one morning and Snitzer consented. The price was to be $ 18,500. Snitzer gave Pokres a check for $ 500 to be used for earnest money. The check was dated March 19, 1923, and was introduced in evidence. The indorsement and bank stamp are not shown in the record, but it appears from the testimony of Snitzer when the check was identified that it...