State ex rel. Kilkenny v. Daues

• Decision Date: 31 December 1926
• Parties: STATE ex rel. KILKENNY v. DAUES et al., Judges.
• Court: Missouri Supreme Court

289 S.W. 550

STATE ex rel. KILKENNY v. DAUES et al., Judges.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Certiorari by the State, on the relation of Lillie May Kilkenny, to be directed to Charles H. Danes and others, Judges of the St. Louis Court of Appeals, to quash the opinion and record of the St. Louis Court of Appeals. (279 S. W. 184) in an action wherein Frank H. Kilkenny was plaintiff and Lillie May Kilkenny defendant. Writ quashed.

Frank & Stewart, of Edina, and Sam B. Jeffries, Arthur E. Simpson, and Paul F. Plummer, all of St. Louis, for relator.

Hilbert & Henderson, of Monticello, and H. S. Rouse, of Canton, for respondents.

ATWOOD, J.

The purpose of this proceeding is to quash the opinion and record of the St. Louis Court of Appeals in the case of Frank H. Kilkenny v. Lillie May Kilkenny. The opinion states:

That the case "is an action in equity to cancel and set aside the satisfaction and release of a deed of trust, and to subrogate the plaintiff to all the rights of the owner of the note and deed of trust before the release was made."

The facts in the case are thus stated in the opinion:

"Plaintiff is the father of James F. Kilkenny, who died in November, 1923, leaving an insolvent estate. The defendant is the widow of James F. Kilkenny, deceased. In March, 1912, James F. Kilkenny purchased a farm, taking title to himself and his wife, creating an estate by the entirety. At the time of this purchase James F. Kilkenny, whom we will hereafter refer to as James, borrowed $1,100 from his father, and gave his note therefor. This money was paid as a part of the purchase price of the farm. James, and his wife, who is the defendant here, borrowed $5,300 from a Mrs. Powell, and gave Mrs. Powell a note for the last-named amount, bearing 5 per cent, interest, and due five years after date. A deed of trust was also given on, the farm in question. The evidence discloses that, some time in the early part of the year 1922, James went to his father, who is the plaintiff in this case, and requested him to take up this note and deed of trust held against his farm by Mrs. Powell, saying he would rather his father would hold the indebtedness against his farm than Mrs. Powell. These facts were shown by the testimony of plaintiff's wife, who is the mother of deceased. According to her testimony, she asked James if he could secure his father if he did that. James replied that he could. During the month of March, 1923, plaintiff went with James to the Bank of Monticello, which bank held the original note and deed of trust belonging to Mrs. Powell. James then informed the cashier. Mr. West, that he wanted to pay Mrs. Powell's loan. The cashier called Mrs. Powell over the telephone and obtained permission from her to accept payment for the note, and to release the deed of trust. At that time plaintiff gave his son his check for $5,100, drawn on another bank. The total amount of the indebtedness at that time, including interest, was $5,119.30. James paid the balance of $19.30 with his personal check, making a total of $5,119.30. This money was then placed to the credit of Mrs. Powell. The cashier of the bank, Mr. West, then took the note, and in company with plaintiff and his son, James, went to the recorder's office to have the deed of trust released. From the cashier's testimony it appears that plaintiff said he did not want a new note, but wanted the note then held by West released from the record. Upon reaching the recorder's office, the recorder was informed of what was desired, and the deed of trust was released of record. Plaintiff says he did not know that the deed of trust was released until after his son's death. His testimony was that he told the recorder that he wanted the lease transferred to him, and that the recorder told him he knew what he wanted; but the recorder testified that he did not remember any such statement being made by plaintiff. Plaintiff also stated that he did not notice the recorder releasing the deed of trust on the margin of the record, and that if he had watched him he would not have known what he was doing. Plaintiff took the note and deed of trust home with him and placed them in a box where he kept his private papers.

"It appears, also, that in March, 1923, about one year after this transaction, James went to his father's home and paid the interest on this note, amounting to $255, with his personal check. This payment was made to plaintiff about one year after the release was entered of record. This interest payment was indorsed on the note, and this indorsement, according to the...