Appeal from Circuit Court, Monroe County; David H. Eby, Judge.
Action by John W. Vandeventer against the Florida Savings Bank. From a judgment for defendant, plaintiff appeals. Case transferred to the St. Louis Court of Appeals.
The plaintiff instituted this suit against the defendant in the circuit court of Monroe county, which resulted in a judgment in favor of the latter, and the former appealed the cause to this court.
The petition filed therein (formal parts omitted) is as follows: "Plaintiff states that defendant is a banking corporation duly organized and existing under the laws of the state of Missouri and engaged in the banking business in Monroe county in said state. Plaintiff for cause of action states that he owns and claims to have the title in fee simple, free and clear of all incumbrances whatsoever, in and to the following described real estate, situate in the county of Monroe and state of Missouri, to wit: The Northwest one-fourth of the southeast quarter and the northeast one-fourth of the southwest quarter of section four (4), township fifty-four (54) of range eight (8). Plaintiff further states that on the 29th day of March, 1897, one John P. Goss, who then owned the above-described premises, being joined by his wife, made, executed, and delivered a certain deed of trust, conveying said premises to one A. D. Bell, in trust, for W. B. Vanschoaick and J. T. Kendall, administrators of the estate of J. H. Hobbs, deceased, to secure to said administrators the payment of a certain promissory note; that defendant claims to have obtained title to said note by assignment from said administrators, and in consequence thereof to have a lien on said premises under and by virtue of said deed of trust; but that plaintiff avers that said defendant has no interest in or lien upon said premises, for that said defendant did not acquire title to said note, and for the further reason that said note was fully paid off and discharged while in the hands of said administrators, and the lien of the said deed of trust thereby extinguished. Wherefore plaintiff prays the court to try, ascertain, and determine the interests of plaintiff and defendant, respectively, to the real estate hereinbefore described, and by its decree to adjudge, settle, and define whatever interests the several parties, plaintiff and defendant, may have in and to the same."
The answer (formal parts omitted) is as follows: "Now at this day comes the defendant herein, and for his answer to plaintiff's petition herein filed admits that it is a corporation duly organized and existing under the laws of the state of Missouri, as therein alleged, and for its further answer to plaintiff's petition denies that plaintiff is the owner in fee simple, free and clear of all incumbrances whatsoever, of the following real estate, situate in the county of Monroe and state of Missouri, to wit: The northwest one-fourth (¼) of the southeast quarter and the northeast one-fourth (¼) of the southwest quarter of section four (4), township fifty-four (54), range eight (8) west. Defendant admits that on the 29th day of March, A. D. 1897, one John P. Goss, who then owned the above-described premises, being joined by his wife, made, executed, and delivered a certain deed of trust, conveying said premises to one A. D. Bell, in trust for W. B. Vanschoaick and J. T. Kendall, administrators of the estate of J. H. Hobbs, deceased, to secure to said administrators
the payment of a certain promissory note, and admits that defendant claims to have obtained the title to said note by assignment from said administrators, and in consequence thereof, to have a lien on said premises under and by virtue of said deed of trust, and avers the fact to be that on the 11th day of February, 1899, and while said note was yet the property of the said W. B. Vanschoaick and J. T. Kendall, as administrators of the estate of J. H. Hobbs, the said Kendall and Vanschoaick, as administrators of the estate of the said J. H. Hobbs, for value received assigned said note and delivered the same to this defendant; and that in consequence thereof this defendant became and now is the owner of said note and the owner and entitled to a lien on said premises under and by virtue of the said deed of trust, so made and executed by the said John P. Goss and his said wife, and as the owner thereof is entitled to the lien on said premises and to the rights therein as conveyed by said deed of trust; and for its further answer denies that said note was fully paid off and discharged while in the hands of said administrators, and the lien of the said deed of trust hereby extinguished. Wherefore the defendant prays the court for an order declaring this defendant to be the owner of said note and to be entitled to the lien on said premises as created and is under and by virtue of the terms of said deed of trust, and to declare the defendant to be the owner of and entitled to a lien to the extent and value of the amount due and unpaid upon said note for which said deed of trust was given to secure the payment of, and for such other, further, and general orders and decrees as it may be entitled to on the premises."
The reply was as follows: "Now comes plaintiff, and for reply to defendant's answer herein denies each and every allegation of new matter therein contained."
The findings of fact were in favor of the defendant, and the decree was as follows: "It is therefore considered, ordered, and adjudged by the court that defendant, Florida Savings Bank, is the owner of said note and the lien on said premises as created under and by virtue of said deed of trust, to the extent and amount of the sum now due and unpaid in said note; and that subject to the provisions of said deed of trust filed for record April 3, 1897, in the office of the recorder of Monroe county, Mo., and recorded in said office in volume 28, at page 329, the plaintiff, John W. Vandeventer, is the owner in fee of said premises; the same being and being described as the northwest one-fourth (¼) of the southeast quarter, and the northeast one-fourth of the southwest quarter of section four (4), township fifty-four (54) of range eight (8), and in Monroe county and in the state of Missouri. It is further ordered and adjudged by the court that said defendant have and recover from said plaintiff its costs herein incurred or expended, and that execution may issue therefor."
Ragland & McAllister, for appellant. Jas. P. Boyd, for respondent.
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