Snow v. Funck

Decision Date28 July 1931
Docket NumberNo. 29321.,29321.
Citation41 S.W.2d 2
PartiesSNOW v. FUNCK et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; J. C. Kiskaddon, Judge.

Action by Robert B. Snow against Gussie J. Funck, executrix of the will and estate of George W. Funck, deceased, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

George C. Mackay and Royal L. Coburn, both of St. Louis, and F. Leland Carpenter, for appellant.

A. E. L. Gardner, of St. Louis, for respondent.

HYDE, C.

The petition of appellant in this action contains two counts. The first count is in ejectment for a tract of about 10 acres in the county of St. Louis. The second count, while indefinite, is apparently an action in equity to divest title to the tract out of respondents and vest it in appellant. Appellant alleges that he is the owner of the 10-acre tract to which he says the original respondent, George W. Funck, claims title; that he is informed and believes that Funck took title thereto, as collateral, for money advanced from Funck to appellant's predecessor in title; that he cannot set forth the exact amount of money so advanced or the exact nature and amounts of such obligations, but that Funck knows these facts and he calls upon him to disclose them; and that such obligations have been extinguished, but Funck refuses to convey the property to appellant. The prayer of the second count is that the court ascertain and determine the title of appellant and Funck; that Funck be declared a trustee of the title he holds for appellant's benefit; that, if anything is due Funck, the amount be determined and appellant be given an opportunity to pay it and redeem said property; and that Funck be barred from setting up any title or claim to the property. Funck's answer was a general denial to each count and also set up the statute of limitations and the statute of frauds to the second count. The court found for defendants on both counts and entered judgment that the petition of plaintiff be dismissed. After appeal to this court, respondent George W. Funck died, and the cause was revived against Gussie J. Funck, executrix of the will and estate of George W. Funck, deceased, and against his widow and children as his sole heirs at law, legatees, and devisees.

The evidence in the record shows that E. J. Wade purchased the tract in question from Albert C. Jahns. Wade, who was a contractor and builder of houses, did not desire the title to the property to appear of record in his name because he had creditors who were interested in finding property, belonging to him, out of which to satisfy their debts. He therefore had the land deeded to D. J. Howell, who was employed by him. Howell executed a $6,000 note and trust deed securing it, upon which Wade procured the sum of $6,000, which was paid on the purchase price. The balance of the purchase price, stated to be $12,500 in the deed from Jahns to Howell, was the conveyance of Wade's equity in two apartment houses located in the city of St. Louis. The record gives us no light as to what these equities were worth. Later Wade, being in need of more money, and being unable to procure it upon a second deed of trust on the property, had Howell convey it by warranty deed to Charles E. Armstrong. Wade testified that this deed, although absolute in form, was in fact made for the purpose of securing a $1,500 loan made to him by Armstrong. About three months later Armstrong wanted his money, and Wade procured it from one A. R. Flemming, who was president of the Appel Realty Company, from which he had obtained the money on the first deed of trust. There was no deed of trust made for this loan, but Armstrong conveyed the property to Flemming by warranty deed. All of these transactions took place during the year 1911. Wade testified that he advised with Funck about these transactions and that Funck knew all about them.

At this time and thereafter Wade became indebted to the Funck Lumber Company for the purchase of building material. On January 3, 1913, he executed a note for $2,500, due in four months, to George W. Funck, who was president of the company. Funck indorsed the note without recourse to the Funck Lumber Company. On the front of the note is the following notation: "See other side for collateral." The statement on the back of the note is as follows: "A deed from D. J. Howell to 10 50/100 acres in the County of St. Louis, State of Missouri, on the Brown Road north of Natural Bridge Road, with improvements, known as the Albert C. Jahns farm, and a deed of trust for $2,685.00 against property known as 4461 Ashland Avenue in the City of St. Louis; said collateral to be held in escrow for a period of four months." Wade testified that this notation was on the note when he signed it. It was in the handwriting of A. R. Fischer, cashier of the Funck Lumber Company. Funck did not know when it was written. Fischer testified that it was put on the note after it was executed. Fischer thought it was put on some time from sixty days to six months after the note was executed. He said he copied it, from a memorandum Wade handed him, at the direction of Funck. They both testified that the note took up only part of Wade's indebtedness to the company, and that the company, in taking it, waived the filing of liens against houses in which Wade had used the building material purchased. On September 6, 1913, Flemming conveyed the property to Funck by quitclaim deed. This deed was recorded on January 24, 1914. Wade, Funck, and Fischer were the only witnesses who knew about these transactions. Some time prior to September, Funck, at the request of Wade, had moved into the property which he says Wade was urging him to buy because he could not pay Flemming and was about to lose it.

Wade did not testify that the $2,500 note was for a loan to pay Flemming or that Funck furnished the money to pay Flemming. He said he owed Funck for lumber and executed the $2,500 note for that. Although Wade does not so testify, it is appellant's contention that the deed from Flemming to Funck was actually given as security for the $2,500 note. Funck and Fischer both testified that Funck bought the land from Wade for $10,000; that this was paid by Funck assuming the $6,000 deed of trust, which he afterwards paid, and whatever else was due Flemming (about $1,600); and that the balance was credited to Wade's account with the Funck Lumber Company and charged to Funck's account, which he afterwards paid the company. Funck continued to live on the land, rebuilt the house, built a new barn and garage, and otherwise improved the place. Some time after obtaining title, Funck left the Funck Lumber Company, and the name of the lumber company was changed to the Goodfellow Lumber Company. The Wade $2,500 note was sued on by the Goodfellow Lumber Company in 1920 and judgment obtained thereon against Wade in 1922 for $3,875. A motion for a new trial was filed on behalf of Wade, but it does not appear to have been ruled on until two years later.

It is at this point that appellant appears upon the scene. He was in the real estate business in St. Louis. He never knew or saw Wade, Howell, or Funck. It appears that one day he gave Mr. Mackey, his attorney, $250, and that Mr. Mackey procured for him a quitclaim deed signed by Howell to the Jahns' farm and another quitclaim deed thereto signed by Wade. These deeds were both dated April 15, 1924, and recorded on April 18, 1924. On this latter date, Mr. Mackey, with another attorney, appeared in the circuit court of the city of St. Louis on behalf of Wade and agreed that his motion for a new trial should be overruled. This was...

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21 cases
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    • 18 Diciembre 1935
    ...... for reversal. [ Lowe v Montgomery, 321 Mo. 330, 11. S.W.2d 41; Snow v. Funck (Mo.), 41 S.W.2d ......
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    ...... by laches. 30 C.J.S. 520, sec. 112; Ruckels v. Pryor, 351 Mo. 819, 174 S.W.2d 185; Snow v. Funck, 41 S.W.2d 2; Townsend v. Maplewood Inv. & Loan Co., 351 Mo. 738, 173 S.W.2d 911; Deicke ......
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    ...... concerning the nature of the agreement entered into at that. time. Snow v. Funck, 41 S.W.2d 2; Robinson v. Field, 117 S.W.2d 308, 342 Mo. 778; Tibeau v. Tibeau, 22 Mo. ......
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    ......Kansas City, Mo.Sup., 233 S.W.2d 26; Snow v. Funck, Mo.Sup., 41 S.W.2d 2. We accord due deference to the trial judge's findings, particularly ......
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