Scanlan v. Gulick

GRAVES, J. Action in ejectment by respondent against appellant to recover a certain tract of land in Phelps county, worth about $600 fi> $1,000'. Petition is in the usual form. Answer was first a general denial, and then in a second count a specific plea of an outstanding title in one Alexander Weems. Replication, a denial of all new matter in answer. The title passed regularly from the General Gov ernment to N. A. Wilson and W. I. Letton. On March 3, [452] 1899, Wilson and wife conveyed to appellant, and on February 4 Letton and wife conveyed to appellant, so that on March 3,1899, appellant had full title. September 11, 1901, appellant and wife executed a deed of trust to J. B. Harrison, trustee for J. W. Scanlan, this respondent, to secure the payment to respondent of a note of $143.74. February 9, 1903, this deed of trust was foreclosed and respondent became the purchaser of the land and received a trustee’s deed therefor and thereafter he brought this suit. It was admitted that appellant was in possession at the time suit was brought, and the evidence showed that he had been in possession since about March 3, 1899. Respondent after introducing the abstract of title, showing the title in appellant as stated above, introduced the deed of trust and trustee’s deed above mentioned and made proof of monthly rents and profits. The abstract of title was admitted in evidence by agreement in lieu of the instruments of conveyance. This abstract of title, besides showing the two- deeds to appellant as aforesaid, did show a deed of trust executed by Alexander Weems and Nancy Weems to John Long, trustee for F. W. Gulick, appellant, to secure the payment of a $1,600 note, which deed of trust bears date July 24, 1899, and was filed for record November 1, 1899. Respondent likewise proved that appellant had been in possession of the land since he received the two deeds from Wilson and Letton. Appellant then introduced evidence- tending to show that prior to the execution of the deed of trust under which respondent purchased, he had made a warranty deed to Alexander Weems, and that he had taken the deed of trust for $1,600- above mentioned, for the purchase price, which deed of trust or a note secured thereby had been assigned to one S. M. Pickier. That he told respondent of these instruments at the. time he gave him his deed of trust. That Alexander Weems [453] was deceased at the date of trial. All this was testified to by appellant, there being no other witness. The cross-examination of appellant was rigid and directed along lines tending to show that the alleged unrecorded deed to Weems and the deed of trust given back by Weems were fraudulent and without consideration, and that the alleged transfer of the note was fraudulent and without consideration. The testimony given by respondent denied any knowledge of the alleged unrecorded deed to Weems. It was further to the effect that at the time appellant gave him the deed of trust for $143.74, appellant said that he still owned the land and that the $1,600' deed of trust was placed there in order to give it a fictitious value to help sell the place. The appellant asked the following declaration of law, which was by the court refused and exception saved: “The court declares the law to be that notice is regarded in law as actual when the parties sought to be affected by it know of the particular fact in question or is conscious of having the means of knowing it although he may not employ the means in his possession for the purpose of getting furthér information. And in this case if it appears that there is a deed of trust recorded in the records of Phelps county, Missouri, conveying the real estate from one Alexander Weems and wife, to John Long, trustee for F. W. Gulick, and that said deed of trust was put upon the abstract which plaintiff procured, purporting to show his title in the real estate in question, then in that case there is sufficient notice to put the plaintiff upon his inquiry as to how the said Alexander Weems claimed title to the said real estate. And if it further appears from the evidence that the defendant had long prior to the execution of the deed of trust to plaintiff, conveyed said real estate to said Alexander Weems, then the defendant Gulick had not title thereto when he gave the deed of trust to [454] the plaintiff herein under which plaintiff claims title, and it devolves upon the plaintiff to recover upon the strength of his own title and not upon the infirmities of the defendant’s title, and the issues will be found for the defendant. ” The trial was before the court and thereupon the court entered judgment’ in favor of respondent for the possession of the land in question and adjudged the monthly rents and profits to- be $5 per month. After unsuccessful motion for new trial appeal was taken to this court. I. It will be observed that by the evidence submitted to the trial court, the issue was squarely presented, as to whether or not there ever was a deed made by Gulick to Weems, and if so then the bona-fides of that deed and the deed of trust for $1,600'. The two witnesses were before the court and after weighing the evidence the court found for respondent. This is an action at law, and this court will defer to the finding of the trial court as to the facts of the case. [Smith v. Royse, 165 Mo. l. c. 658, and list of cases there cited.] In this Smith case, which is very similar to the case at bar, Brace, P. J., said: “This is purely an action of law, in which we are not called upon to determine the weight of the evidence. The finding of the trial court is final upon that question.”- But if we did not defer to the finding of the trial judge, one could hardly read the testimony of Gulick without concluding that if he made a deed to Weems, at all, it was evidently done for -the- purpose of taking a deed of trust back for a sum exceeding’ the value of the land, in order to give it a fictitious trading value, and that he was in fact the owner of the land. This is ■what he told respondent in explaining the deed of trust. II. The instruction asked by appellant would perhaps be good law in most cases, where the facts would authorize, but. under the peculiar issues raised by the [455] evidence in this case, the court was justified in refus-' ing it, for the reason that it left out of question the hona-fides of the two instruments of writing heretofore mentioned. A single instruction intended to present the law of the ease should cover the whole case, it being the only instruction asked, as in this instance. [Lesser v. Railroad, 85 Mo. App. 326; Boothe v. Loy, 83 Mo. App. 601; Borden v. Falk Co., 97 Mo. App. 566; Drumm-Flato Com. Co. v. Bank, 107 Mo. App. 426.] This in no way conflicts with the general rule1, that if all the instructions taken together properly state the law of the case, it is sufficient. But in the case at bar only one instruction was asked, and it directed a judgment for appellant, without requiring the court to consider a material question presented by the evidence upon the part of respondent. Finding no reversible error in the record, the judgment of the circuit court is affirmed. All concur.