Walker v. Allebach, 39365.

• Citation: 189 S.W.2d 282
• Decision Date: 04 September 1945
• Docket Number: No. 39365.,39365.
• Parties: MRS. IVA V. WALKER, Administratrix of the Estate of ROBERTA MINKNER, Deceased, HELEN SAGER and AUGUST SAGER, v. J.F. ALLEBACH and SILKEY AKES, Appellants.
• Court: Missouri Supreme Court

189 S.W.2d 282

MRS. IVA V. WALKER, Administratrix of the Estate of ROBERTA MINKNER, Deceased, HELEN SAGER and AUGUST SAGER, v. J.F. ALLEBACH and SILKEY AKES, Appellants.

No. 39365.

Supreme Court of Missouri.

Division Two, September 4, 1945.

Appeal from Harrison Circuit Court. — Hon. V.C. Rose, Judge.

APPEAL DISMISSED.

Geo. Francis Burton for appellant.

E.L. Redman and C.B. DuBois for respondents.

LEEDY, J.

This is a suit in equity to cancel and set aside a deed of trust conveying 80 acres of land Gentry County, and the $3000.00 note secured thereby, and to enjoin a threatened foreclosure sale under said deed of trust. From a decree for plaintiffs as prayed, defendants appeal.

The parties will be referred to as they were styled in the trial court. The cause originated in Gentry County, and on defendants' application for a change of venue, it was transferred to the Harrison Circuit Court, where, on July 18 and 19, 1944, it was tried during the May, 1944, term of said court.

The instruments in question were executed December 26, 1941, by Roberta (or Roa) M. Minkner, a widow (since deceased), a resident of Gentry County. The note, maturing in five years after the date thereof, was payable to the maker's sister, defendant Silkey Akes, a resident of Kansas, who was also the beneficiary in the deed of trust. From plaintiffs' brief, and by exploring defendants' improperly prepared transcript on appeal, we learn that defendant Allebach is the trustee named in the deed of trust, and, as such, is a nominal party defendant. The plaintiffs are Mrs. Iva V. Walker, the Administratrix of the Estate of Roberta Minkner, deceased, and Mrs. Minkner's only child and heir at law, Helen Sager, and the latter's husband, August Sager. The Sagers are judgment creditors of said estate. The petition charges, among other things, that said instruments are void because they were obtained by Silkey Akes in fraud of creditors, including the Sagers, and that said conveyance was voluntary and without consideration, and that it was never delivered to the said Silkey Akes, but wrongfully came into her possession after the death of Roberta Minkner; and that the estate has no other property or assets with which to satisfy her creditors. The answer set up that the consideration for said note and deed of trust was the advancement by Silkey Akes of large sums of money to her sister, Roberta Minkner, and the payment of all of the latter's doctor and hospital bills and funeral expenses, and an agreement to care for and keep the grantor "the remainder of her life, whether short or long," which contract, it was alleged, had been fully and completely performed.

Proceedings on this appeal subsequent to the filing of the short form transcript (December 7, 1944) have been under the new code (Civil Code of Missouri, Laws 1943, pp. 353-397, secs. 847.1-847.145 Mo. R.S.A.), and our Rule 1, both of which became effective January 1, 1945. This cause was originally docketed for May 4, 1945. Plaintiffs, on April 25, 1945, filed their motion to dismiss the appeal for failure of defendants to comply with rules 1.04 and 1.08. We acted on several irregular motions filed by defendants, and otherwise attempted to facilitate the hearing of the cause on its merits. Among other things, we extended the time for the filing of their brief, and reset the cause at the foot of our May docket, at which time the...