White v. Hughes

• Decision Date: 07 October 1935
• Docket Number: No. 5595.,5595.
• Citation: 88 S.W.2d 268
• Parties: WHITE et al. v. HUGHES et al.
• Court: Missouri Court of Appeals

88 S.W.2d 268

WHITE et al. v. HUGHES et al.

No. 5595.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Rehearing Denied November 27, 1935.

Appeal from Circuit Court, Carter County; W. H. D. Green, Judge.

"Not to be published in State Reports."

Action in equity for an injunction by H. E. White and wife against A. M. Hughes and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

R. F. Spitzer and David W. Hill, both of Poplar Bluff, for appellants.

Fulbright & Sheppard and Chas. B. Butler, all of Doniphan, for respondents.

ALLEN, Presiding Justice.

This is an action in equity in which respondents sought, and were by the circuit court of Carter county awarded, an injunction against appellants, restraining them from foreclosing a deed of trust securing the payment of a certain note in the sum of $2,300, which note and deed of trust were executed by appellants, A. M. Hughes and Teresa Hughes, husband and wife, to C. E. Smith, "as trustee of the said Teresa Hughes, administratrix of the Frank Wathen estate, of the county of Ripley and state of Missouri, party of the third part."

The said note and deed of trust were dated August 1, 1928, due 16 months after date, with interest at 8 per cent. The deed of trust was acknowledged on August 14, 1928, but was not recorded until November 25, 1930.

By a general warranty deed dated July 15, 1930, and purporting to have been executed and acknowledged on said date, the said A. M. Hughes and Teresa Hughes, his wife, appellants herein, conveyed to H. E. White and Bertha White, his wife, respondents herein, amongst other lands, the following described lot: "Also beginning at the northeast corner of block one Horton Land & Lumber Company Addition to the town of Barfield, now city of Naylor, Missouri, run thence in a westerly direction along the north line of block one 57½ feet, thence in a southerly direction parallel with east line of block one 100 feet, thence in an easterly direction parallel with north line of block one 57½ feet, thence in a northerly direction along the east line of block one 100 feet to the place of beginning described by metes and bounds as follows: Beginning 57½ feet east and west and 100 feet north and south. * * *"

Warranting against the lawful claims and demands of all persons whomsoever, "Except one deed of trust, balance due on same unpaid $1,000.00 and interest."

At the conclusion of the trial of this cause in the circuit court, the court found the facts therein as follows:

"That on the 15th day of July, 1930, for a valuable consideration the defendants, A. M. Hughes and Teresa Hughes, by their general warranty deed, conveyed to plaintiffs the following described real estate, lying, being and situate in the county of Ripley and state of Missouri, to-wit:

"`Beginning at the northeast corner of Block 1, Horton's Land and Lumber Addition to the Town of Naylor; running west parallel with Broad Street 57 feet; thence South 105 feet; thence East 57 feet; thence North 105 feet to the point of beginning.'

"Which said deed was duly acknowledged on the 15th day of July, 1930, and delivered to plaintiffs and recorded on the Deed Records of Ripley County, Missouri, in the office of the Recorder of deeds of said Ripley County, on the 27th day of January, 1931, by which said deed defendants, A. M. Hughes and Teresa Hughes, his wife, covenanted that they were lawfully seized of an indefeasible estate in the premises therein conveyed, and that they had good right to convey the same; that the said premises were free and clear of any incumbrance done or suffered by them or those under whom they claim, and that they would warrant and defend the title to said premises unto the said parties of the second part and unto their heirs and assigns forever against the lawful claims of all persons, except one deed of trust, balance due on same unpaid $1,000.00 and interest.

"The court further finds that the said defendants, A. M. Hughes and Teresa Hughes, falsely and fraudulently at the time of the execution of said deed, represented to plaintiffs that the lands conveyed were free and clear of all incumbrances, except the incumbrance of one deed of trust for $1,000.00, unpaid balance and interest, when in truth and in fact said premises were not free of all other incumbrances, but same were incumbered by a certain deed of trust made by these defendants, A. M. Hughes and Teresa Hughes, his wife, which they well knew at the time of the execution of the warranty deed aforesaid; that the said deed of trust was executed by the said A. M. Hughes and Teresa Hughes to the said C. E. Smith, trustee for the defendant, Teresa Hughes, administratrix of Frank H. Wathen estate and dated October 1, 1928, acknowledged October 14, 1928, and given to secure an alleged indebtedness of $2,300.00, to the said Teresa Hughes, administratrix of the said Frank H. Wathen estate; that the said deed of trust was withheld from record by said defendant, Teresa Hughes, administratrix of the said Frank H. Wathen estate for a long period of time, and after the execution and delivery of the said warranty deed aforesaid to plaintiffs, and after the payment of the consideration for said warranty deed; that said trust deed was not recorded until November 25, 1930, and that said plaintiffs were not informed of and had no knowledge of the existence of the last above mentioned deed of trust at the time of the execution and delivery and payment of the consideration of the warranty deed aforesaid, and that the said plaintiffs were innocent purchasers without notice for a valuable consideration of the real estate hereinbefore described.

"The court further finds that defendants, A. M. Hughes and Teresa Hughes, are insolvent and that a judgment at law against them on their warranty deed could not be collected and that plaintiffs have no complete and adequate remedy at law; and, the court further finds that said above described lands have been advertised for sale under the power of sale contained in said last above mentioned deed of trust on March 11, 1933, by the defendants herein, and that said defendant, Teresa Hughes, administratrix of the Frank H. Wathen estate, was threatening and about to sell said lands on the above mentioned date, and at the time the petition in this suit was filed."

Upon which finding of facts the trial court rendered its judgment as follows: "Wherefore, it is ordered, adjudged and decreed by the court that the deed of trust made and executed by the defendants, A. M. Hughes, and Teresa Hughes, to C. E. Smith, trustee for Teresa Hughes, administratrix of the Frank H. Wathen estate, dated January 1, 1928, and filed for record November 25, 1930, and recorded in Book 94, page 628, of the Deed Records of Ripley County, Missouri, be and the same is cancelled, set aside and for naught held as to these plaintiffs, and that the motion filed herein by the defendants to dissolve the temporary injunction heretofore issued by the County Court of Ripley County, be and the same is hereby overruled, and that said temporary injunction be and the same is hereby made perpetual. * * *" The evidence offered by the parties to the said warranty deed and deed of trust, we think, clearly establishes that the Whites, at the time the Hughes delivered to them the warranty deed conveying to the Whites the plot of ground 57 feet wide east and west by 105 feet north and south, in the northeast corner of block 1 of Horton's Land & Lumber addition to the town of Barfield, now the city of Naylor, in Ripley county, Mo., had no knowledge or information as to the existence of the deed of trust theretofore executed and acknowledged by appellant Teresa Hughes, administratrix of the Wathen estate, on August 14, 1928, and which was not recorded until November 25, 1930. That is, the Whites had theretofore accepted the warranty deed from the Hughes on July 15, 1930.

On the 15th day of July, 1930, prior to the recording of the above-mentioned deed of trust on November 25, 1930, the plaintiffs (respondents) H. E. White and wife, Bertha White, entered into a written contract with the defendants (appellants) whereby the plaintiffs (respondents) agreed to exchange some real estate in the state of Texas for the real estate involved in this litigation, and certain other real property, but for convenience the real property involved in this case is referred to as the Lyon's property.

Pursuant to their agreement with the Hughes, the Whites made the trade with appellants on some Texas land, and thereafter caused a deed or deeds thereto to be executed to the Hughes.

Respondents H. E. White and Bertha E. White, husband and wife, had no knowledge or information as to the deed of trust executed by appellants to Teresa Hughes, administratrix of the Frank H. Wathen estate, which was not then of record, but accepted said warranty deed in good faith, relying upon the representations that the Lyon's deed of trust for $1,000 and interest, mentioned in the warranty deed to responden...