Stratton v. Cole
| Decision Date | 06 December 1919 |
| Citation | 216 S.W. 976,203 Mo.App. 257 |
| Parties | H. T. STRATTON, Respondent., v. S. S. COLE, RUBY COLE and DANIEL STRATTON, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
R. M Sheppard and A. R. Dunn for appellants.
C. E Prettyman and Owen & Davis for respondent.
The plaintiff filed a bill in equity in the circuit court alleging that he was the owner of a note given by R. L. Hayes to him for $ 1300, secured by deed of trust on a certain tract of land in Newton County, Missouri, which deed of trust was recorded in the Recorder's office. The petition then alleges that Hayes conveyed the land, and through successive mesne conveyances the defendants became the owners of the land subject to the deed of trust before mentioned. The petition further states that plaintiff is still the owner and holder of said note; that ever since its execution it has been in his possession and control, and that it has never been paid nor satisfied in any manner whatever. It then alleges that on the 13th day of January, 1917, one Truman Elmore fraudulently undertook to release the deed of trust upon the records in the office of the Recorder of Deeds, and did on said date write upon the margin of the record that the note secured had been satisfied, and signed his name to the release as assignee and legal holder of the note, and did thereby fraudulently procure and induce the Recorder of Deeds to attest the same and write an indorsement upon the margin of the record that said note so secured was produced and cancelled. The release and satisfaction by the Recorder is in the usual form, with the usual certificate that the note had been produced, having been properly assigned, and cancelled.
The petition further alleges that the said Truman Elmore had never been the assignee, owner or legal holder of said note, and that plaintiff's note had never been presented to the Recorder of Deeds nor cancelled. The prayer of the petition is that the purported and pretended release be set aside and cancelled and adjudged to be null and void, and that the court ascertain and determine the titles, rights, interest and liens of the parties and adjudge that plaintiff's deed of trust is a lien upon the land unpaid and unsatisfied, coupled with a prayer for general relief.
The answer of S. S. Cole, first is a general denial of plaintiff's petition, and further answering charges; that at the time of the release mentioned in plaintiff's petition the said Truman Elmore was the authorized and acting agent of the plaintiff, and had been continuously for a long time prior to that date acting as his agent, with full authority from plaintiff to make releases for him, sell land and collect the purchase price therefor in connection with plaintiff's real estate business. That on numerous occasions, prior to the making of the release which is the subject-matter of this suit, the said Elmore had acted as agent for the plaintiff and those connected with him, with full authority from plaintiff to sell various tracts of land belonging to plaintiff and his co-partners, collected the purchase price and delivered the deeds, made releases of record for the plaintiff, and had performed various other acts as the agent for plaintiff, all of which were fully acquiesced in and ratified by plaintiff, and of which the defendants had knowledge. That these acts were done with reference to land lying near and in the neighborhood of the land involved in this suit, and that by such course of dealing the defendants were led to believe, and did believe that said Elmore was fully empowered and authorized by the plaintiff to do all things necessary toward a complete transfer of property belonging to plaintiff or in which he held an interest either as owner, mortgagee or otherwise.
It is further alleged that more than two years has elapsed from the time of making the release of said deed of trust in controversy before the plaintiff commenced this suit, and that the suit was commenced about a month after the death of said Elmore by suicide
The answer further alleges that defendants had placed valuable and lasting improvements upon said land since purchasing it. That the records of the Recorder's office show that the note sued on had been released in the Recorder's office January 13, 1917, and that relying on such record they had purchased the property, paying the sum of $ 500, gone into possession and made said improvements without any notice or knowledge that the release was wrongful, and prays that plaintiff be estopped from denying that said release was a regular binding release; and further prays that if said deed of trust was not properly released and cancelled that defendants are entitled to have the same released, cancelled and discharged; and further prays that defendants be found by decree of court to be the owners in fee simple, free and clear of any liens on the part of plaintiff. And further ask that if the court should find said note was paid and discharged, and the release by Elmore was without authority, to now enter a decree releasing and discharging the defendants from the incumbrance of said deed of trust. The answer also prays for general relief and costs.
Daniel Stratton was the trustee in the deed of trust which was given to plaintiff. He answers by general denial, and further answering says that if the deed of trust described in plaintiff's petition conveyed the land to him as trustee, it was done without his knowledge or consent.
The court rendered a decree in plaintiff's favor, finding that on the 27th day of March, 1916, one R. L. Hayes was the owner of the land covered by the mortgage, and that he executed a note in the sum of $ 1300, together with interest payable to the plaintiff, and simultaneously executed and delivered a deed of trust on the land mentioned. That the deed of trust was duly recorded in the office of the Recorder of Deeds of Newton County, and that thereafter, one Truman Elmore, pretending to be the owner and holder of said note, presented a note purporting to be the note described in said deed of trust, and acknowledged payment of said note described in said deed of trust and caused the Recorder of Deeds of Newton County to certify a release of record. The court further finds that Elmore was not the owners of said note, and that the same was wrongfully and fraudulently released and discharged on the records of the Recorder of Deeds of Newton County; and further finds that Cole became the purchaser of the real estate after the fraudulent release was entered, and had made improvements thereon to the amount of $ 35. The court then ordered, adjudged and decreed that the release and cancellation of the deed of trust be set aside and for naught held and that the deed of trust given to secure the note held by the plaintiff be adjudged and decreed in full force and effect; and that the interest and title of defendants in and to said real estate aforesaid is subject to the deed of trust; and further decreed that S. S. Cole have a lien on the property for the amount of his $ 35 improvements, said lien to be subject to the deed of trust. The defendants being dissatisfied with this judgment have brought their appeal to this court.
There are but two questions to be considered in determining the correctness of this judgment. Defendants contend, in the first place, that the course of dealing which had been carried on between the plaintiff and Truman Elmore was such as to establish the fact that there was an agency created that authorized Truman Elmore to enter the release in the Recorder's office, and that such course of dealing and acts which were known to the defendants and relied upon by them in becoming the purchasers of the land estopped the plaintiff from denying the authority of Elmore to make the release.
The next question presented by appellant is that the court committed error in permitting the plaintiff and his witness Hayes to testify in this proceeding because of the death of Elmore, the man who caused the entry of the alleged fraudulent release. We will take these questions up in their order and in disposing of them state the facts relative to each.
It appears from the evidence that the land covered by this deed of trust was owned by a Company known an the MonArk Townsite Company, which Company was practically owned and entirely controlled by Truman Elmore; that the land was by such Company deeded to R. L. Hayes, the maker of the note given to plaintiff. Hayes, while the owner of the land, executed the note held by plaintiff for $ 1300, and secured it by a deed of trust on the property. Thereafter, Hayes conveyed the property to the MonArk Townsite Company, which company as before stated, was controlled entirely by Elmore. When this deed was made from Hayes to the MonArk Townsite Company, the plaintiff's debt and deed of trust was a valid and subsisting record lien on the property. The MonArk Townsite Company, through Elmore, its agent, conveyed it to defendants herein, and before doing so produced a note to the Recorder of Deeds of Newton County, which was apparently a facsimile of the note sued on and described in the deed of trust, with an indorsement making him the assignee, and armed with such note he procured the release and attestation of the Recorder of Deeds. The recorder of Deeds testifies that the note presented to him for the purpose of cancelling the deed of trust appeared in all respects to correspond with the note described in the deed of trust, and appeared to be in the hands of Elmore as assignee, and that the note presented by Elmore was marked...
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