Williams v. Mackey
| Decision Date | 03 September 1932 |
| Docket Number | No. 31411.,31411. |
| Parties | LOUISE WILLIAMS, Appellant, v. L.E. MACKEY, THE PEERLESS INVESTMENT COMPANY, a Corporation, QUEEN CITY BANK OF SPRINGFIELD, MISSOURI, a Corporation, and S.L. CANTLEY, as Commissioner of Finance for the State of Missouri, in Charge of the STATE SAVINGS TRUST COMPANY, a Corporation, and WM. J. McCAULY. |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
TRANSFERRED TO THE SPRINGFIELD COURT OF APPEALS.
G.W. Goad and V.O. Coltrane for appellant.
Dan M. Nee and Barbour, McDavid & Barbour for respondent.
It appears from plaintiff's petition that on July 20, 1925, appellant, plaintiff below, purchased from defendant State Savings Trust Company five promissory notes of $500 each, executed by Jerry C. Beck and wife on July 13, 1925, all due three years after date and secured by a deed of trust on the lands described in plaintiff's petition; that on February 15, 1926, said J.C. Beck and wife executed a second deed of trust on said land in favor of one T.H. Beck; that this second deed of trust was foreclosed on November 19, 1927, and the property was purchased by the New First National Bank; that said bank conveyed the land to defendant, Peerless Investment Company; that said company conveyed same to one Harry Palmer who executed a second deed of trust thereon for $1,000 in favor of defendant Wm. J. McCauly and then reconveyed the land to defendant Peerless Investment Company subject to plaintiff's $2,500 first deed of trust and McCauly's second for $1,000; that plaintiff's notes with interest thereon from July 13, 1929, were due and unpaid; and that on the ____ day of November, 1929, the State Savings Trust Company by order of its board of directors was placed in the hands of defendant S.L. Cantley, as Commissioner of Finance of the State of Missouri, for the purpose of liquidation; that defendants L.E. Mackey, S.L. Cantley, as Commissioner of Finance in charge of the State Savings Trust Company, and the Queen City Bank claim to have some lien upon or interest in said real estate, but whatever lien or interest said defendants, or any of them have, is subject to the lien of plaintiff's deed of trust.
The prayer of the petition is that the claims of defendants and all persons claiming under them be foreclosed of all interest, lien and equity of redemption in said land, and that same be sold and the proceeds thereof applied to the payment of plaintiff's notes and costs of suit.
All defendants were duly served with process. Defendants L.E. Mackey, The Peerless Investment Company and Wm. J. McCauly defaulted. Defendants S.L. Cantley, Commissioner of Finance, and The State Savings Trust Company answered disclaiming any interest in the land or in the notes secured by deed of trust thereon.
Defendant Queen City Bank answered admitting that it claimed an interest in the land. It further alleged that plaintiff's deed of trust was foreclosed by the trustee and one L.E. Mackey purchased the land; that thereafter on December 8, 1928, said L.E. Mackey executed a deed of trust on said land in favor of the State Savings Trust Company securing five promissory notes, each for the sum of $500; that defendant Queen City Bank purchased said five notes from said Trust Company before maturity and for a valuable consideration, and that said notes with interest thereon from date remain due and unpaid. The answer further alleges, in substance, that the State Savings Trust Company acted as the general agent of plaintiff respecting all her loans and notes, and as to the collection of principal and interest thereon, with authority, right and power to direct foreclosure upon a default being made in the payment of any of said notes, or interest thereon, and by reason of such facts plaintiff is estopped from claiming that the foreclosure of her deed of trust through which this defendant claims an interest in the land was void. The answer further alleges that plaintiff knew that her note was past due and she likewise knew that the deed of trust securing said note did not require, as a condition precedent to foreclosure by the trustee, that a request for such foreclosure should be made by her. The answer does not ask any affirmative relief. The prayer is that defendant be discharged with its costs.
Plaintiff replied denying all new matter in defendant's answer and alleging that the deed of trust which defendant Queen City Bank claims to have acquired from the State Savings Trust Company was and is void for the reason that L.E. Mackey who executed same had no title to the land; that said L.E. Mackey's claim to said land was acquired under a pretended foreclosure of plaintiff's deed of trust; that said foreclosure was and is fraudulent and void in that the legal holder of said note did not request such foreclosure, but same was made without her knowledge or consent; that the recital in the trustee's deed that the sale was made at the request of the legal holder of the note is false and untrue; that no consideration was paid at said trustee's sale and no credit was made on plaintiff's note.
The trial below resulted in a finding and decree for defendants. Plaintiff appealed to the Springfield Court of Appeals and that court transferred the case here on the ground that title to real estate is involved.
[1] Applying the principles determinative of our jurisdiction on the ground that title to real estate is involved, it is our judgment that we do not have jurisdiction in this case. In the recent case of Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W. (2d) 771, this court en banc reviewed many former decisions of this court and again announced the principles which should govern in determining the question of our jurisdiction in a given case on the ground that title to real estate is involved. We quote from that case the following:
To continue reading
Request your trial