Williams v. Maxwell

• Decision Date: 17 April 1935
• Docket Number: 32658
• Citation: 82 S.W.2d 270
• Parties: WILLIAMS v. MAXWELL
• Court: Missouri Supreme Court

82 S.W.2d 270

WILLIAMS v. MAXWELL

No. 32658

Supreme Court of Missouri, First Division

April 17, 1935

Nick T. Cave and A. R. Troxell, both of Columbia, for appellant.

William H. Sapp, of Columbia, for respondent.

OPINION

HYDE Commissioner.

This is an action in ejectment. There was a jury trial. Plaintiff obtained judgment for possession of real estate in the city of Columbia and rents and profits until possession was restored to him. Defendant has appealed. Plaintiff's petition, in ordinary form, stated that 'he was the legal owner and entitled to the possession of' the land described therein. Defendant's answer was a general denial and plea that the note, secured by the deed of trust under the foreclosure of which plaintiff claimed title, had been materially altered by a change in the date thereof; and that the foreclosure proceedings under which plaintiff claimed title are null and void. Plaintiff's reply set up that the issue of the alteration of the note was res judicata, having been litigated in another suit between the parties, and reasserted his legal title to the land.

Plaintiff introduced in evidence the trust deed and the sheriff's deed under foreclosure thereof, and obtained the following admissions: 'It is admitted between the parties hereto that Hubbert Williams was, in the year 1919, duly adjudged insane by the Probate Court of Boone County, Missouri, and that J. B. Coleman was in said year duly appointed as guardian and curator; that the said Coleman duly qualified as such guardian and curator, and has been since said date, and is now, the duly qualified and acting guardian and curator of the person and estate of the said Hubbert Williams; that Emmett Maxwell owned the real estate described in plaintiff's petition on the 18th day of July, 1927; that Georgia Maxwell, his wife, is now dead; that Emmett Maxwell is now, and has been since July 18, 1927, in possession of the real estate described in plaintiff's petition claiming title thereto; that Clyde Ballew is now, and has been since January 1, 1929, the duly qualified and acting sheriff of Boone County, Missouri; that the license of the St. Louis Underwriters Corporation, a Delaware corporation to transact business in Missouri was duly revoked long prior to August 1, 1931, and said corporation has been incapable of exercising any corporate powers in this state since said date.'

The trust deed, dated July 18, 1927, stated the parties to it to be: 'Emmett Maxwell and Georgia Maxwell, his wife, of Columbia, Boone County, Missouri, Parties of the First Part and St. Louis Underwriters Corporation, a corporation, of City of St. Louis, State of Missouri, party of the Second Part, and A. C. McLin, Trustee, of the City of St. Louis, State of Missouri, hereinafter called Party of Third Part.'

The trust deed described the indebtedness, which it secured, as follows:

'The said Emmett Maxwell and Georgia Maxwell, his wife, parties of the first part, being justly indebted to the party of the third part for borrowed money in the sum of Thirty-five Hundred Dollars, for the payment of which with interest to accrue they have executed and delivered to the party of the third part Seven certain negotiable promissory notes dated June 4th, 1927, and expressed to be for value received, drawn to the order of the said Party of the Third Part, and payable at the office of the St. Louis Underwriters Corporation, in St. Louis, Mo., as follows, to-wit:

'Six notes are interest notes, each in the sum of One Hundred Five Dollars, numbered consecutively from one to six inclusive and due in six, twelve, eighteen, twenty-four, thirty, thirty-six months after date respectively; all bearing interest at the rate of eight per cent per annum after maturity. The seventh note is a principal note in the sum of Thirty-five Hundred Dollars, due Three years after date and also bearing interest at the rate of eight per cent after maturity.'

The trust deed contained the usual provisions in regard to default and sale. The sheriff's deed conveyed the property, as follows: 'Do bargain, sell and convey unto him the said J. B. Coleman, as such guardian and curator of Hubbert Williams, a person of unsound mind. * * * To have and to hold the same, unto the said J. B. Coleman, as guardian and curator of Hubbert Williams, a person of unsound mind, his successor and assigns, forever. It being understood that said property belongs to the estate of the said Hubbert Williams, and that J. B. Coleman, as such guardian, simply holds the title thereto for him and in his behalf.'

The sheriff's deed recited compliance with the terms of the trust deed as to notice, stated the date and recording thereof, including book and page of the record, and contained the further recitals, namely: 'Whereas, it is provided in and by the terms of said deed of trust that in a certain contingency therein stated the acting sheriff of Boone County, Missouri, in case of the absence, death, refusal to act, or disability in any wise of the above mentioned St. Louis Underwriters Corporation, a corporation, trustee, may act in lieu of and perform the duties and powers delegated to the said trustee in and by the terms of said deed; and whereas, St. Louis Underwriters Corporation, a corporation, the said trustee, is no longer capable of exercising any corporate powers in the State of Missouri, and is now a defunct corporation; and whereas, default was made in the payment of said principal note for $ 3,500.00 secured by said deed, by reason whereof, I, Clyde Ballew, sheriff of Boone County, in the State of Missouri, acting as trustee, and in the place and stead of the said trustee appointed in and by said deed, in accordance with the terms of said deed did, at the request of the legal holder of said note did proceed to execute the powers to me given by said deed.'

Plaintiff offered in evidence the petition in the suit referred to in his reply which defendant had brought against plaintiff and the other parties to the trust deed. Defendant objected to its introduction, which objection the court sustained, and plaintiff was not permitted to show the record of the former case. In making this offer, plaintiff's counsel stated 'The purpose of introducing that proceeding at this time is to show that the note referred to in the deed of trust has been identified by the judgment of this court in a prior proceeding. The note and the question as to the change in the date of the note has been considered and adjudged and determined by a prior judgment of this court, and that the note referred to in the defendant's deed of trust and in the sheriff's-trustee's deed is the note described and referred to in the deed of trust.' In refusing this offer, the court said: 'The objection they are making is that their defense is alteration. That is an affirmative defense. They have to prove that and then your evidence is estoppel by way of * * * and whether it amounts to an admission by the defendant that this is the debt. * * * I presume it is a matter of discretion of the court as to the order of the evidence. I don't see that you are hurt by letting the case go in its regular order. * * * I will sustain the objection at this time.' Plaintiff then showed the value of the rents and profits and closed his case. Defendant offered no evidence but asked the court to direct a verdict in his favor. The court refused to do so but gave instructions, which...