Wooldridge v. Dittmeier

• Decision Date: 05 November 1945
• Docket Number: 39415
• Parties: Walker Wooldridge, Administrator of the Estate of Coretter Ford, Deceased, and Walker Wooldridge, Individually, Respondents, v. Frank L. Dittmeier, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 926

Walker Wooldridge, Administrator of the Estate of Coretter Ford, Deceased, and Walker Wooldridge, Individually, Respondents, v. Frank L. Dittmeier, Appellant

No. 39415

Supreme Court of Missouri, First Division

November 5, 1945

From the Circuit Court of Franklin County Civil Appeal Judge R. A Breur

Affirmed

OPINION

Van Osdol, C.

Action instituted October 14, 1940, by Coretter Ford to try ascertain and determine title of land in St. Charles County. Thereafter, Coretter Ford having died, the cause was revived in the name of Walker Wooldridge as administrator of her (Coretter Ford's) estate and in the name of "Walker Wooldridge individually." The trial court entered a decree adjudging plaintiff to be the owner of an undivided half interest in the land, and the remaining undivided half interest was found and decreed to have been vested in Coretter Ford at the time of her death. The decree also set aside a sale under a deed of trust (and the trustee's deed) to one Marcella Heinrichs through whom by mesne conveyances defendant claimed title. Defendant has appealed.

As stated, the action was instituted by Coretter Ford, and after her death, May 22, 1941, the action was revived in the name of plaintiff as administrator and "individually." Defendant filed an answer and counterclaim to the petition as filed in the lifetime of Coretter Ford, denying the ownership of the land in plaintiff; alleging himself, defendant, to be the owner of the land in fee simple; and prayed the court to try, ascertain and determine title in defendant and to enjoin plaintiff's assertion or claim of any interest in the land. By the counterclaim, defendant sought to recover for rents and profits alleged to have been collected by plaintiff. Plaintiff (Wooldridge) dismissed the original petition but filed "Reply to Separate Answer and Counterclaim of Defendant" alleging that the title to the land, in June 1938, was in Coretter Ford; that defendant was then engaged in the real estate loan business and had made a loan to Coretter Ford exacting a usurious rate of interest; that, upon default of the first monthly installment of the loan, the land was sold by a substitute trustee to one Marcella Heinrichs for an inadequate price. Irregularities of the trustee's sale and defects in the notice thereof were also alleged. And the plaintiff further alleged that the matters complained of were carried out by defendant and "his agents acting as straws for him at his instance and request, with the intention and design of defrauding said Coretter Ford of her property - - -." By the pleading, plaintiff tendered the balance due on the amount of the actual loan with interest and reasonable expenses incurred by defendant, and for the cancellation of the trustee's deed. Answering defendant's counterclaim, plaintiff reasserted ownership and consequent right to collect rents and profits. In a rejoinder, defendant alleged facts tending to negative the plaintiff's allegations of usury; made specific admissions and denials of certain allegations contained in plaintiff's reply; and asked for judgment as prayed in defendant's answer and cross bill.

In the trial of the case defendant undertook the burden of sustaining the allegations of his answer and counterclaim, and, at the conclusion of defendant's evidence, plaintiff submitted the case by proffering a demurrer to the evidence.

The trial court found and adjudged that defendant "is not entitled to recover on his separate answer and cross bill or rejoinder to plaintiff's reply; that the plaintiff, Walker Wooldridge, is the owner in fee simple of an undivided one half right, title and interest in and to" the described land, and that the "remaining undivided one half right, title and interest in said real estate belonged to said Corretter Ford at the time of her death - - -." And, as stated, the trustee's sale and deed were set aside and cancelled by the decree.

Defendant complains of the trial court's finding and judgment for the reasons (1) the uncontradicted evidence proved defendant to be the fee simple owner of the land; and (2) there was no pleading seeking the adjudication of the title in plaintiff, and no evidence offered by which the decree determining the title in plaintiff can be sustained. It is necessary to make an extended review of the evidence as introduced in the trial of the cause.

In June 1938, Coretter Ford was the owner of the described land in St. Charles County and of real property in the city of St. Louis. She made application to defendant for a loan, offering the two tracts of real property as security. Defendant was engaged in the "real estate and finance" business in St. Louis. The business was conducted under the name "Frank L. Dittmeier Real Estate & Loan Company," and 90% interest in the (unincorporated) company was owned by defendant and a son. When applying for the loan, Coretter Ford stated to defendant, "Now, one thing must be done. I need this money tomorrow. I am in serious difficulty and I must have this money tomorrow." The note, dated June 21, 1938, was in principal sum of $850, Eugene Dittmeier (son of defendant), payee; it was payable in monthly installments of $35, interest 8% from maturity; and secured by a deed of trust conveying the two tracts of real property to Frank L. Dittmeier, Jr., another son of defendant, as trustee. The instrument was acknowledged before defendant as notary public. Defendant's statement of the settlement account upon the consummation of the loan was as follows,

"By collateral loan negotiated for your account

on property 1320 N. 21st St. and also on 80

acres St. Charles Co. Mo. 6%

$850.00

To cash paid you

$500.00

" Services for negotiating loan per agreement

100.00

" Recording deed of trust City

4.25

" Recording deed of trust St. Charles Co.

4.25

" Continuation of title to City property

20.00

" Continuation of title to St. Charles property

10.00

" $1000.00 fire ins. to city property

11.50

" $1000.00 tornado ins. to city property

5.00

" $2500.00 fire ins. St. Charles property estimated

25.00

" $2500.00 tornado ins. St. Charles property "

10.00

" Additional charge city title for special rush

10.00

" Sergices looking up taxes both city and St. Charles

properties

10.00

" Notary public acknowledgments

2.00

" 1936 and 1937 taxes on city property estimated

128.68

" ESTIMATED BALANCE ON HAND TO YOUR CREDIT

9.32

$850.00

$850.00"

$500 was paid to Coretter Ford upon the consummation of the loan, and, July 19, 1938, she received a further sum of $120.66 for which she gave her personal note payable to "Frank L. Dittmeier Real Estate." According to defendant, the latter sum was advanced to Coretter Ford upon her promise to pay taxes on the property in the city of St. Louis. It was the testimony of defendant that he thereafter paid $17.34 taxes due and payable on the land in St. Charles County. Coretter Ford defaulted in the payment of the first installment of $35 due July 21, 1938, and the land in St. Charles County was sold by a substitute trustee on August 26, 1938, for the sum of $425. Defendant stated the rental value of the land to be "at least ten dollars a month."

The substitute trustee, Edward A. League, was requested to act as such by defendant. The deed of trust contained the provision that, in case of the death or disability of the trustee, "Frank L. Dittmeier as successor in trust, or in case of his inability, neglect or refusal to act, then a successor appointed by the holder of the notes - - - may proceed to sell the property - - -." Defendant's son and defendant each refused to act as trustee. There was introduced into evidence a written request dated July 23, 1938, signed by A. (Anna E.) Williams (of whom see infra) to Edward A. League requesting him to act as successor trustee. For some years League, when requested, had occasionally acted "as trustee for Mr. Dittmeier's sales

- - -. Mr. Dittmeier prepares all the papers and has things ready" for him. League's conversations relating to his service as substitute trustee in selling the St. Charles County land were with defendant. Defendant was the only bidder at the sale. The successor trustee's deed, prepared by defendant, conveyed the land to one Marcella Heinrichs. (The property in the city of St. Louis seems to have been sold under the deed of trust, in October 1938, to one Harry Barr for $500.) Marcella Heinrichs conveyed the St. Charles County land by warranty deed dated September 6, 1938, to one Larry S. Kent, who executed a deed of trust the same day to Edward A. League as trustee to secure the payment of a note of $2500 to Marcella Heinrichs. This deed of trust was acknowledged before defendant as notary public, and was foreclosed December 19, 1941, subsequently to the institution of this action; the land was conveyed by the trustee's deed to A. Williams, who conveyed to defendant by warranty deed (unrecorded at the time of the trial) dated December 20, 1941. Larry S. Kent "had no interest in the property." There was no consideration for the note and deed of trust executed by Kent; according to defendant, "we thought - - - foreclosure under that deed of trust might cure this title, if there were any defects against it." An unrecorded quitclaim deed purporting to have been executed by Coretter Ford conveying the described land to Marcella Heinrichs was introduced into evidence. The instrument dated September 3, 1938, recited,

"This deed of quit claim being in full release of and satisfaction of any interest I may have in and to said property which was foreclosed under deed of trust of $850.00 executed by me, on which I defaulted in the payment of the first note, and I hereby...