Woolridge v. La Crosse Lumber Co.

• Decision Date: 31 December 1921
• Docket Number: No. 22093.,22093.
• Citation: 236 S.W. 294,291 Mo. 239
• Parties: WOOLRIDGE et al. v. LA CROSSE LUMBER CO.
• Court: Missouri Supreme Court

236 S.W. 294

291 Mo. 239

WOOLRIDGE et al. v. LA CROSSE LUMBER CO.

No. 22093.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Appeal from Circuit Court, Montgomery County; E. S. Gantt, Judge.

Action by J. Walker Woolridge and others against the La Crosse Lumber Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Action to ascertain and determine interest in real estate under the provisions of section 1970, R. S. 1919. The real estate involved is described as:

"All of 44 feet off of the southeast side of lot one of block four, of Ellis addition to the city of Wellsville, formerly town of Wellsville, fronting on Sturgeon street 44 feet and running back to the alley in said block 120 feet, and all being in Montgomery county, Missouri."

Pleadings.

The petition alleges that one Mary Mottz was the owner of said property on November 20, 1913, and that through mesne and intermediate conveyances, all fully described in the petition, appellants (plaintiffs below) acquired title to said property, and asserted that the respondent (defendant below) claimed some right, title, and interest to said real estate. Appellants prayed for an ascertainment and determination of the interests of all parties to said real estate.

Respondent's answer joined appellants in the allegation that Mary Mottz was the owner of the said property prior to November 20, 1913, and then alleged that on that day she conveyed said property to J. H. Dungan and Maggie A. Dungan, as also alleged in appellants' petition. The answer then alleged that J. H. Dungan and Maggie A. Dungan on the same day they received a deed from Mary Mottz executed and delivered their certain promissory note in the sum of $3,500, payable to the order of Mary Mottz, and to secure same executed and delivered their deed of trust on said property, and that all the mesne and intermediate Conveyances set up in appellants' petition were made subject to the said deed of trust, and that, default having been made in the payment of said note for $3,500, under the provisions of said deed of trust, the property was sold, and at said sale the respondent became purchaser. Appellants' reply denied knowledge of the execution and delivery of the deed of trust from J. H. Dungan and wife, but said that if executed and delivered, as alleged by respondent, such deed of trust was a nullity, void at law, and of no legal force and effect, further alleging that said deed of trust was improperly recorded, was not entitled to record, and was not notice to appellants and those under whom they claimed title to the real estate; and, further replying, appellants denied that the conveyances, under which they claim, had been made subject to the deed of trust set up in respondent's answer, and they affirmed that they had acquired title to said real estate without notice of the deed of trust pleaded by respondent.

The Facts.

The testimony supported the allegations of the pleadings on both sides so far as the execution and delivery of the instruments pleaded were concerned. It appeared that on November 20, 1913, Mary Mottz conveyed to J. H. Dungan and wife by general warranty deed, and on the same day Dungan and wife executed their deed of trust on said property to secure the payment of a note for $3,500; that thereafter, to wit, on November 26, 1913, Dungan and wife conveyed by general warranty deed to George D. Austin, and that Austin and wife on March 27, 1914, by general warranty deed conveyed to Henry Roppel, and that the deed from Austin to Roppel contained the following:

"That said premises are free and clear of any incumbrances done or suffered by grantors or those under whom they claim, except the following: A deed of trust for $3,500, held by Mary Mottz." (The italics are ours.)

Thereafter, to wit, on August 21, 1916, by general warranty deed, Roppel and wife conveyed to William H. Hobbs; said deed of conveyance containing the following:

"This property is sold subject to a deed of trust for $3,500 to Mrs. Mary Mottz, of Wellsville, Missouri, which the second party fully assumes and agrees to pay, together with all accumulation of interest on same from the date of this deed." (The italics are ours.)

Thereafter on April 7, 1917, Hobbs and wife executed their deed of trust on said property to secure appellant Charles E. Wright on their note to him in the sum of $800. This deed of trust contained the following recital:

"This deed of trust is made subject to a prior deed of trust in the sum of $3,500 to Mrs. Mary Maltz of Wellsville, Missouri."

Subsequently, to wit, on January 16, 1918, Hobbs and wife gave to appellant Woolridge a quitclaim deed, but, said deed being defective and irregular, another was executed between the same parties on March 22, 1919. The property was sold under the deed of trust given by Dungan and wife to Mrs. Mottz, and on February 9, 1918, the sheriff of Montgomery county, as sheriff and trustee, executed and delivered a deed to respondent, conveying said property to it. At the opening of the trial, the record recites as follows:

"Before announcing ready for trial it was agreed by and between counsel for plaintiffs and defendant, as an admitted fact in open court, that J. H. Dungan and Maggie A. Dungan actually signed the deed of trust to Mrs. Mary Mottz, being the deed of trust in issue in this case; and it was further agreed between counsel for plaintiffs and defendant, as an admitted fact, in open court, that Thomas K. Shelby, the notary who took the acknowledgment to the deed of trust in question, and T. K. Shelby, the grantee named therein, are and were one and the same party."

And thereafter appellants' counsel interposed the following objection to the introduction of the deed of trust from Dungan and wife in evidence:

"Mr. Rosenberger: Now, your honor, the plaintiffs and each of them object to the introduction of Defendant's Exhibit No. 3 for the following reasons: Defendant's Exhibit No. B, which they seek to introduce is a certain deed of trust, in which one T. K. Shelby is named as trustee, which purports to have been acknowledged and was acknowledged before Thomas K. Shelby, notary public.

"The Court: Who is the trustee?

Mr. Rosenberger: T. K. Shelby, Thomas K. Shelby, notary public. It stands as an admission in this case that Thomas K. Shelby, the notary public, and T. K. Shelby, the trustee, are one and the same parties; therefore we object to the introduction of this deed of trust for the following reasons: The conveyance and deed of trust acknowledged before the trustee is a nullity, and the record thereof is not constructive notice to subsequent purchasers. For the further reason: The certificate of acknowledgment purports to have been made, and it was actually made, and the execution of the instrument acknowledged, before the grantee therein, the trustee, and the certificate of acknowledgment is therefore void. And in support of these objections we cite your honor to the cases of Stevens v. Hampton, 46 Mo, 404; Dail v. Moore, 51 Mo. 589; Black v. Gregg, 58 Mo. 565; Rainey v. Alberry, 73 Mo. 427; and the case of German-American Bank v. Carondelet Real Estate Company in 150 Mo. 571; this same case also found in 51 S. W. 691."

The evidence showed that appellants' counsel, Mr. Rosenberger, had represented Mrs. Mottz at the sale of said property under the Dungan deed of trust, and that appellant Woolridge had interviewed him in an effort to have the sale deferred; that at the time appellant Woolridge, who was a licensed lawyer, acquired title to the said property he had in his possession, and had examined an abstract of title to said property, which disclosed the Dungan deed of trust, and there was other testimony tending to show actual knowledge of the existence of said deed of trust at the time he received his quitclaim deed from Hobbs. As may be noted from the agreement of counsel made at the opening of the trial and from the objection to the introduction of the Dungan deed of trust, the only question in this case is as to the efficacy of the Dungan deed of trust to give constructive notice, in view of a defect in the acknowledgment of the grantors in said deed of trust thereby, as it is claimed, rendering said deed of trust ineligible for record.

Emil P. Rosenberger and Clover E. Dowell, both of Montgomery City, for appell...