Whitecotton v. Wilson

• Decision Date: 03 July 1917
• Docket Number: No. 14660.,14660.
• Citation: 197 S.W. 168
• Parties: WHITECOTTON v. WILSON et al.
• Court: Missouri Court of Appeals

197 S.W. 168

WHITECOTTON v. WILSON et al.

No. 14660.

St. Louis Court of Appeals. Missouri.

Argued and Submitted June 7, 1917.

Opinion Filed July 3, 1917.

Rehearing Denied July 17, 1917.

Appeal from Hannibal Court of Common Pleas; Wm. T. Ragland, Judge.

"Not to be officially published."

Action by James H. Whitecotton against Mortimer H. Wilson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Eby & Hulse and Thos. L. Anderson, all of Hannibal, for appellants. Whitecotton & Wight, of Moberly, and Nelson & Bigger, of Hannibal, for respondent.

REYNOLDS, P. J.

It appears that the plaintiff, respondent here, being the owner by deed of a farm referred to as the "Barnicle Farm," his interest subject to a deed of trust, at the instance of defendant Wilson, who resided at Hannibal, and who was his brother-in-law, and with whom for over 40 years he had been in intimate business relations, the two engaged together in a variety of enterprises and adventures, being advised by Wilson that he could exchange his equity in the Barnicle Farm for two certain lots situated in Hannibal, agreed to make the exchange. Plaintiff, who then resided in Paris, Monroe county, accordingly executed a deed for the Barnicle farm to the owner of these two lots and at Wilson's request sent it to Wilson at Hannibal with instructions to deliver it to the owner of the two lots in exchange for his equity in the Barnicle Farm. Wilson with this deed from plaintiff delivered it to the owner of those lots but instead of taking a deed for the two lots to plaintiff, caused the owners of the lots to make a deed to one of the lots, which was subject to a deed of trust for $600, to plaintiff, and without the knowledge or consent of plaintiff, took a deed to the other lot in his own name. The lots were improved and rented, plaintiff leaving them in charge of Wilson. Shortly afterwards Wilson borrowed $1,500 from one Peiter, giving him a deed of trust on the lot, title to which stood in his own name, to secure the $1,500. A few days after the receipt of this $1,500, and about December 23, 1912, Wilson deposited about $1,400 of this $1,500 with the defendant Trust Company. Plaintiff did not learn that Wilson had taken the deed to the lot in his own name until about December 8, 1913, when he demanded that Wilson convey it to him, which the latter refused to do, claiming that he (Wilson) was owner of a one-half interest in the Barnicle Farm, and so was entitled to this lot as his share. About December 23d or 24th plaintiff learned of the transaction by which Wilson had borrowed $1,500 on this lot, and, as he testified, on December 24, 1912, going to the Hannibal Trust Company, a defendant here, about noon of that day, which was Saturday, in a conversation with Mr. Hickman, treasurer of the Hannibal Trust Company, and as plaintiff testified, he thought in the presence of Mr. Whaley, also an officer of the trust company, told Hickman "what had happened." Exactly what he told him had happened, does not appear. At any rate, plaintiff testified that he asked Hickman if there had been any deposit made in the bank by Mr. Wilson within the last few days. Hickman said he did not know and called another officer, or some one connected with the bank, who told plaintiff that on the day before, that is on the 23d, an even $1,400 had been deposited with the Trust Company by Wilson. To this plaintiff said to Hickman, "That's my money, procured from a mortgage on my property out here in town," and plaintiff asked the Trust Company people not to pay it out. Plaintiff further testified that he asked this of Mr. Hickman, and he thought Mr. Whaley was standing there too. To this Mr. Hickman said, "Well, you give us notice just as soon as you can," to which plaintiff said:

"Now, it's my money — no question about it in my mind but that's part of the proceeds of this loan on my property. I have got the data here and I am going immediately home and prepare suit and I will file it Monday morning."

The following Monday, the 26th, plaintiff testified that he filed his petition in this action with the clerk of the court as soon as the office opened and the papers were given to the sheriff for service along with the papers in another suit to divest the title of Wilson out of the lot and declare title in him free and clear of the deed of trust placed upon it in favor of Mr. Peiter. We are advised by counsel that this latter suit was decided in favor of plaintiff and appealed to the Supreme Court, necessarily so, as it involved title to real estate, a matter not within our jurisdiction.

It appears that on Saturday, the 24th, there was on deposit with the Trust Company to the credit of Wilson $1,376.93 of the fund which Wilson had deposited that day or the day before, and that on December 26th, the Trust Company paid out $608.60 on a check of that date drawn by Wilson to pay off a note which Wilson then owed the Trust Company, and also a check for $17.50, being all the checks that were drawn by Wilson against the deposit which was with the Trust Company of that date, namely, $1,376.93.

In the petition in this case plaintiff sets up substantially the above facts and avers that with the intent to defraud plaintiff of his property in the lot, Wilson, on December 13, 1913, caused the deed of trust to be made and executed by himself and his wife, conveying the legal title to the lot to a trustee for the benefit of one Peiter, to secure the payment to said Peiter of $1,500, Wilson executing his promissory note to Peiter for that amount and recording the deed of trust; that by reason of the wrongful and fraudulent acts, as aforesaid, of Wilson, he had procured from Peiter the sum of $1,500 on plaintiff's property, and on December 23, 1913, having so wrongfully received this sum of $1,500, Wilson paid to and deposited with the Hannibal Trust Company $1,400 of this $1,500, "then and there at the time being the property and money of the plaintiff, and that said defendant Hannibal Trust Company received said money, as aforesaid, and gave the account of said Wilson credit by said sum of $1,400, and that said bank and Trust Company has since said date of receiving said money as aforesaid, and the giving the credit to the defendant as aforesaid, been in the possession and now is in the possession of said sum of $1,400, which is by it held and maintained as a credit, as aforesaid, in favor of said Wilson. That said money so received by said defendants, in justice and right, belongs to and is the property of plaintiff and should be paid to plaintiff. That said lands were received by said Wilson in trust for the use and benefit of the plaintiff and that said sum so received, as aforesaid, from said Wilson in the sum of $1,400 by said Hannibal Trust Company, was by said defendant received to the use and benefit of the plaintiff." Repeating that this sum was wrongfully received by defendant Wilson and by him held under law for the use and benefit of plaintiff and is now held by the defendant trust company without the consent of plaintiff for the use and benefit of plaintiff, "and that the same is money had and received to the use and benefit of the plaintiff, and that by reason of the facts aforesaid, the said defendants and each of them, is indebted to the plaintiff in the sum of $1,400 for money had and received by defendants as aforesaid, to and for the use of the plaintiff in this case, and that though demanded to pay the same, by plaintiff, the said defendants and each of them have failed and refused to pay the same to plaintiff." Plaintiff demands judgment against defendants in the sum of $1,400, with interest and costs.

The answer of the defendant Wilson is a very long one but in effect is no more than a specific denial of all the averments of the petition and sets up the grounds upon which Wilson claims to have had a half interest in the Barnicle farm, and winds up with a prayer for judgment that plaintiff take nothing by his action and that the defendant be declared by court to be owner in fee of the premises conveyed to him subject to the deed of trust mentioned.

It may be said of this latter, however, that it was disregarded at the trial, that issue being covered by the other suit referred to and is not insisted upon in this appeal. If it was here present our court would have no jurisdiction of this cause. The answer of the defendant trust company was a general denial, that company having first interposed a demurrer which was overruled.

The cause was submitted to the court, a jury being waived and at the conclusion of the trial the court found the issues for plaintiff and against both defendants, making a special finding of facts. From this judgment both defendants have appealed.

It is insisted that the petition states no cause of action against the defendant trust company. We do not agree to this. While the petition is not very artificially drawn and contains a good deal of unnecessary matter, it sufficiently states a cause of action against the trust company as for money had and received, which, ex æquo et bono, belongs to plaintiff.

There was a vast amount of testimony taken in the case and on perusal of it we must confess that it is very contradictory and if the labor were thrown upon us of weighing it, we would be at a very great disadvantage, not having the witnesses before us.

Learned counsel ...