Vandergrif v. Brock

• Decision Date: 11 December 1900
• Citation: 59 S.W. 979,158 Mo. 681
• Parties: VANDERGRIF v. BROCK.
• Court: Missouri Supreme Court

59 S.W. 979

158 Mo. 681

VANDERGRIF v. BROCK.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

TRUST DEEDS — RELEASE — COURTS — JURISDICTION.

To secure a note to one of two partners, plaintiff gave a trust deed on lands to the other

partner, which note, after maturity, was transferred to defendant. Plaintiff was ignorant, and was led to believe that payments which he had made had been properly credited on the note. In fact, no credits had been indorsed on the note. Held, that an action to compel the release of the trust deed as having been fully paid did not involve the title to real property, and hence the supreme court had no jurisdiction of the appeal therein.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Action by Rolley Vandergrif against Allie Brock to compel the release of a trust deed. From a judgment for plaintiff, defendant appealed to the St. Louis court of appeals, from which it was transferred to the supreme court. Retransferred to the St. Louis court of appeals.

N. Gibbs and Samp Jennings, for appellant. John C. Turk, for respondent.

BRACE, P. J.

This is an appeal from the circuit court of Lawrence county to the St. Louis court of appeals, transferred by the latter to this court; the court of appeals, in its opinion, per Biggs, J., saying: "This is an action in equity to set aside a deed of trust to lands on the alleged ground that the conveyance was obtained by fraud, and that the debt has been fully paid. Under the decision of the supreme court in Overton v. Overton, 131 Mo. 559, 33 S. W. 1, such a suit involves title to real estate, within the meaning of the constitution limiting the jurisdiction of this court. The cause will therefore be transferred to the supreme court for determination." 73 Mo. App. 646. The petition is as follows: "Plaintiff states that on, to wit, the 1st day of October, 1894, he executed his certain deed of trust, recorded in the office of the recorder of deeds of said Lawrence county in Deed of Trust Book 32, at page 239 thereof, whereby he conveyed to one J. Brock the following described premises, to wit: The southwest quarter of the southwest quarter of section twenty-four (24), township twenty-nine (29) north, of range twenty-six (26) west of the fifth principal meridian, containing forty acres; also all of the northeast quarter of northeast quarter of section twenty-three (23), in said township twenty-nine (29), and north of said range twenty-six (26) west, containing forty acres, more or less. All of said real estate is situate in county of Lawrence, in the state of Missouri. Plaintiff says that said conveyance was in trust to secure the payment to one W. G. Swinney of a certain promissory note in said deed of trust described, and that said note was executed by plaintiff for the principal sum of one hundred and twenty dollars, and of even date with said deed of trust, and due nine months after date thereof. That at the time of the execution by plaintiff of the said deed of trust and the said note therein described as aforesaid said J. Brock and one M. E. Swinney were co-partners, and engaged in and carrying on a loan business at Ash Grove, Missouri, under the firm name of Swinney & Brock, and that the note described in said deed of trust was given as aforesaid in payment of a loan then and there procured of said firm in the said sum of one hundred and twenty dollars by plaintiff; that the plaintiff cannot read and write, and that without the knowledge or consent of plaintiff the said firm of Swinney & Brock made the said J. Brock trustee in the said deed of trust, and the said W. G. Swinney, husband of the said M. E. Swinney, payee in said note. That thereafter the said firm of Swinney & Brock dissolved co-partnership, the exact date of which plaintiff is not informed, and divided up the assets of said firm. That said one hundred and twenty dollar note, executed as aforesaid by plaintiff, long after maturity was assigned and delivered by said Swinney to one Allie Brock, who is the wife of said J. Brock, and the defendant in this action. That at the time of said assignment of said note, and long prior thereto, said firm and said Allie Brock connived together corruptly and unlawfully to beat and evade the usury laws of this state, and to extort and exact from plaintiff usurious interests, commissions, and extension money upon said indebtedness; and that defendant, since the assignment and delivery of said note to her, in divers sums and at divers times has continued to charge and receive from plaintiff unlawful and usurious interest thereon; and plaintiff avers that all of said payments were made by him in discharge of the principal and legal interest due by said note, and plaintiff was led by said firm and defendant to believe that just and proper credits were duly entered on the back of said note, and that proper and correct receipts were, at the time of making such payments, delivered to the plaintiff. That defendant Allie Brock is the holder and present owner of said note, and that said defendant well knew at the time that said payments made by plaintiff, both before and after the assignment of the note to her, were made by plaintiff in good faith, and in discharge of the legal indebtedness due by said note; and the said defendant did take undue advantage of plaintiff's inability to read and write by filling up a note or contract for the plaintiff to sign each time that plaintiff made a payment on said secured note which said note or contract in each case is void, and a cheat, being without any consideration therefor. That such pretended notes or contracts said defendant induced plaintiff to believe were receipts in good faith for the various amounts therein named and paid by plaintiff on said secured note, both before and after the assignment of said note to the defendant. Instead of a receipt for the amount of...