Schroeder v. Bobbitt

Barclay, J.

The deed which plaintiff’s bill seeks to set aside is in the nature of a mortgage, securing payment of some $12,000. The defendants are the holders of the secured indebtedness, and other parties variously interested in the subject-matter of the trust.

It is unnecessary to state the pleadings in detail. Their general nature will sufficiently appear.

The hearing developed these Tacts: Mary E. Schroeder, the present plaintiff, had a writ for divorce against Wm. H. P. Schroeder in June, 1888, which was about to be called* for trial, when the latter executed the deed of trust mentioned, transferring certain parcels of land in St. Louis to a trustee to secure to Mrs. Bobbitt, one of these defendants, the indebtedness stated. It is admitted that Mr. Schroeder was then justly liable to Mrs. Bobbitt in the sum of $12,057.44, for money loaned, evidenced by a note for that amount, dated February 25, 1888. This note was unsecured until the execution of the said deed of trust which, however, recited it as being for $12,000. The deed was duly recorded June 8, 1888 ; thereafter, July 6, 1888, *293 plaintiff obtained a decree of divorce as prayed, which adjudged to her, for life, all the interest and estate of Mr. Schroeder in one of the parcels of land covered by the deed of trust in question.

Plaintiff’s chief contention is that this deed is fraudulent as to her; but it may shorten the discussion to mention, just here, that, in her bill of exceptions, plaintiff concedes that the deed .was executed and delivered to secure' the note of February 25, 1888; “ that said note was misdescribed in the deed of trust, because the attorney for Mrs. Bobbitt did not have it with him at the time said deed was drawn; that, whatever the intent of the defendant Schroeder in executing said deed of trust may have been as against the plaintiff, the defendant Bobbitt did not participate in any fraudulent intent, but received the sum in good faith for the sole purpose of securing the indebtedness that was due her.”

In view of this concession it is unnecessary to consider the effect of a number of minor facts, surrounding the execution of the deed and urged iipon our notice in argument. They merely bear, more or less cogently, upon the issue of good faith in the transaction, which issue is eliminated by the admission mentioned.

Granting (though we do not decide) that plaintiff, by reason of the pendency of her divorce suit, was fully entitled to the standing of a creditor of her husband at the time he made this conveyance, it was still his privilege to prefer one creditor at large to another. If the creditor thus preferred had “the sole purpose of securing the indebtedness due ” (as here appears), there can be no doubt that the acceptance • of the preference' involved no fraud on other creditors, less fortunate. This proposition is no longer questionable in Missouri as our reports show. Kuykendall v. McDonald (1852), 15 Mo. 416 ; Forrester v. Moore (1883), 77 Mo. 651 ; Albert v. Besel (1885), 88 Mo. 150 . Nor does the fact *294 that the incumbrance was imposed on the land to secure an existing, not a new, indebtedness of Mr. Schroeder avoid the force of the rule just cited. This, too, is. settled by prior rulings of this court. Colbern v. Robinson (1883), 80 Mo. 541 ; Sexton v. Anderson (1888), 95 Mo. 373 .

II. The misdescription of the note secured does not vitiate the security. It was called a note for $12,000’ when in reality it ran for $12,057.44; but its date and terms in other particulars were correctly recited in the mortgage. The court limited the scope of the security to the sum which appeared of record, and found, as a fact, that the note held by Mrs. Bobbitt was the one intended to be.secured. In so doing, we think there was no error prejudicial to plaintiff’s rights.

III. We regard the deed of trust as a valid charge upon the realty. Without going into the details of the procedure adopted by the trial court to enforce it (as prayed by defendant’s answer in' the nature of a cross-bill ), we consider it sufficient to remark, generally, that after an examination of the whole record, we are of opinion that the result reached by the court was correct in all respects, and should be affirmed.

It is so ordered, with the consent of all the judges of this division.'