Woolridge v. Lacrosse Lumber Co.
| Decision Date | 31 December 1921 |
| Citation | 236 S.W. 294,291 Mo. 239 |
| Parties | J. WALKER WOOLRIDGE et al., Appellants, v. LACROSSE LUMBER COMPANY |
| Court | Missouri Supreme Court |
Appeal from Montgomery Circuit Court. -- Hon. E. S. Gantt, Judge.
Affirmed.
Emil P Rosenberger and Glover E. Dowell for appellants.
(1) A deed of trust acknowledged before the trustee is a nullity and the record thereof is not constructive notice to subsequent purchasers. Stephens v. Hampton, 46 Mo 404; Dale v. Moore 51 Mo. 589; Black v Grigg, 58 Mo. 565; Hainey v. Alberry, 73 Mo. 427; German-American Bank v. Real Estate Co., 150 Mo. 571. (2) Mere vague conjectures made by persons and not made in the transaction out of which the deeds in question originated, or vague and flying rumors by strangers, do not constitute actual notice. Morris v. Juden, 145 Mo. 300.
Matson & Cowherd and W. C. Hughes for respondent.
(1) A deed of trust acknowledged before the trustee therein, wherein its execution is duly proved, is good between the parties thereto and those claiming under them. Bennett v. Shipley, 82 Mo. 448; Stevens v. Hampton, 46 Mo. 404. (2) When a deed is fair upon its face it is the duty of the recorder to receive and record it, and its record operates as notice, notwithstanding there may be some hidden defect. Stevens v. Hampton, 46 Mo. 408; Ammerman v. Linton, 214 S.W. 173. (3) Actual notice of the existence of a deed does not mean direct evidence that the subsequent purchaser actually knew the deed was in existence; but any proper evidence tending to show it, facts and circumstances coming to his knowledge that would put a man of ordinary prudence on his inquiry, will suffice. State Bank v. Frame, 112 Mo. 502; Wilcox v. Phillips, 260 Mo. 685; Maupin v. Emmons, 47 Mo. 304; Morris v. Juden, 145 Mo. 282; Griffin v. Railway Co., 82 Mo.App. 93; Werner v. Litzsinger, 45 Mo.App. 106; Rhodes v. Outcalt, 48 Mo. 370; Drey v. Doyle, 99 Mo. 459, Black v. Gregg, 58 Mo. 565; Voelpel v. Phoenix Ins. Co., 183 S.W. 681; Whitecotton v. Wilson, 197 S.W. 168, 171. (4) Nor is it necessary that notice of the exact nature of the lien should be shown, provided notice of a lien is shown, the nature of which the person sought to be charged could have easily ascertained by inquiry. Werner v. Litzsinger, 45 Mo.App. 106; Bronson v. Wanzer, 86 Mo. 408; Meier v. Blume, 80 Mo. 184; Tate v. Sanders, 245 Mo. 217; Wilcox v. Phillips, 260 Mo. 685. (5) Notice of an unrecorded conveyance is not necessary as against a subsequent grantee who is not a purchaser for value. Aubuchon v. Bender, 44 Mo. 560; Maupin v. Emmons, 47 Mo. 304; Rice v. Bunce, 49 Mo. 231; Briggs v. Henderson, 49 Mo. 531; Bailey v. Winn, 101 Mo. 649; Ins. Co. v. Smith, 117 Mo. 261.
REEVES, C. Railey and White, CC., concur.
Action to ascertain and determine interest in real estate under the provisions of Section 1970, Revised Statutes 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 Wells ville, 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."
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 thirty five hundred dollars, 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 thirty five hundred dollars, under the provisions of said deed of trust the property was sold, and at said sale the respondent became the 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 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 thirty five hundred dollars. That thereafter, to-wit, on November 26, 1913, Dungan and wife conveyed by general warranty deed to George E. 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 encumbrances done or suffered by grantors or those under whom they claim, except the following: A deed of trust for $ 3500, 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 $ 3500 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 eight hundred dollars.
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 $ 3500 to Mrs. Mary Mottz 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 defendants, 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:
The evidence showed that appellants' co...
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