Wilson v. Parke
Wilson v. Parke
Opinion of the Court
In December, 1901, H. B. Parke, under the trade name of Wentworth Lead .& Zinc Mining Company, acquired a mining lease by assignment, on a parcel of land in the southeast quarter of the southwest quarter section 1, township 26, range 29, in Lawrence county, Missouri, upon which he erected a reduction plant and placed mining machinery, etc., for the operation of the mine. On August 16, 1902, the Wentworth Lead & Zinc Mining Company, H. B. Parke and wife, by their deed of trust, duly acknowledged, conveyed the leased premises and machinery and tools thereon situated to W. R. Scheldrup, trustee, to secure the payment of the promissory note of said Parke, of even date therewith, for the sum of twenty-five hundred dollars, to the Pierce City National Bank, the beneficiary named in the deed of trust; deed recorded September 8, 1902. On September 30, 1903, the Wentworth Lead & Zinc Mining Company, Parke and Wife, executed a second deed of trust on the same property, subject to the prior one, to A. L. White, trustee, to secure the payment of several sums of money due from Parke to N. U. Wilson and the other plaintiffs’ aggregating $2,691.-21; deed recorded September 12, 1903. The trustees in these two deeds of trust were given power to advertise
The petition alleged, in substance, that the deed from the bank to Cooke, the one from Cooke to the Jovis Zinc Mining Company, and the deed of trust from the Mining Company to Davis, trustee, for the benefit of
Pending the suit a supplemental petition was filed, praying for an order to enjoin Davis and Hewitt from selling the property under the Davis and Hewitt deeds of trust. A temporary injunction was granted, which was made perpetual on the final hearing.
Defendants Davis and Hewitt filed their joint answer, denying the allegations of the petition and alleging the bona fides of the Hewitt deed of trust and of the other deeds charged by plaintiffs’ petition to have been fraudulently executed.
The suit was commenced in the Lawrence Circuit Court but was removed by change of venue to the Greene Circuit Court, where it was tried, resulting in a finding by the court in favor of the plaintiffs, and a judgment awarding the relief prayed for in the petition. Davis and Hewitt appealed.
The only connection Davis, who resides in Lawrence county, Missouri, is shown to have had with any of the transactions set forth herein is that he, without his
*31 “I did all of the business for the company while I was there. I worked there for two years. Mr. White and I had talked this matter over. In fact the property had been advertised once before for sale, and before the day of sale Mr. Parke raised $500.00 and paid on that mortgage. It was originally for $2,500. He raised $500, and paid on the mortgage and stopped that sale; and we had often, Mr. White and I, had often talked about the matter, and thought that him, or some of his friends, or her friends, their brother-in-law, would come in and rescue the property and not let it sell. When I saw these telegrams that morning I says: ‘That settles it. Mr. White, they are going to take this up. We have talked several times, and I don’t think I had better interfere. Let them take it up,’ and I didn’t go to Mt. Vernon.
“Q. What did he tell you, if anything, in reference to what the bank would do? “A. Well, I urged action, so I would know what to do. The board was called together that morning, which I presume they are every Monday morning, or maybe every other morning, and had a meeting. I was inside the directors’ room, and also in behind the railing of the teller, Mr. Coppoek, and we were all in there together and were talking over this matter. He says, ‘They have decided to give Mr. P'arke — to sell the property and bid it in for just their claim, and give Mr. Parke a week to take it up in.’ I says, ‘That is all right, but if he don’t take it up, I am ready to take it up; I am ready and anxious, and if he don’t take it up, I want to take it up, because that makes my trust deed good.’
“Q. Did you leave then, or was there anything further? A. I stayed around there until the train went west, about 9:30. There was a gentleman with me who was going to take an interest in the property with me, if we had to bid it in. We went down and looked over the mine, at Mr. White’s suggestion.
*32 “Q. State to the court if you would have bid that property in at that time, except for what Mr. White told you? A. Certainly. I went there for that purpose.”
White refused to advertise and sell under the second deed of trust, or to surrender the deed to Wilson, whereupon Wilson requested the sheriff (Connor) to act as trustee. Connor at first consented to advertise and sell under the deed of trust, but when he was put in possession of the facts growing out of the sale under the bank’s deed of trust, he refused to act further. Wilson then procured the keys to the mining plant from the watchman in charge and took possession and held possession from two to three weeks, when he was forcibly ejected. He then brought suit for forcible entry and detainer, but on the trial the verdict of the jury was against him. ■
The following letters were offered in evidence:
“December 23, 1903.
“Mr. N. U. Wilson,
“Joplin, Missouri.
“Dear Sir: — Your favor of yesterday’s date has been received. From the way things look this bank will have no trouble in disposing of the mining plant bought in by sale 14th instant. There is an option on this property that expires 26th instant. Price of plant is what it cost the bank. Now if the parties do not take up their option and pay cash for the property on or before the 26th instant, and your crowd want it on the same terms, will see that you can get it. But you will have to notify bank Saturday, 26th, that night, or the Monday following, 28th, by 8 a. m. Bank claims will not exceed $2,200, which includes royalty claims. Answer.
“Yours truly,
“A. L. White.
*33 “Pierce City, Mo., Dec. 25, 1903.
“Mr. N. U. Wilson, Joplin, Mo.
“Dear Mr. Wilson: — Yonr letter 24th received. You certainly misunderstood my letter. However there is no explaining matters as the plant is sold and money paid for them. Time of option to Mr. Parke was extended and yesterday acceptance was wired here. Have every reason to believe that one of Mr. Parke’s friends, a Mr. Cooke, furnished the money and deed will be made out in his name. Had that end not taken up our offer to redeem, your crowd would have had a chance to take up the property. There has been no desire on part of the bank to keep the property, in fact, they have acted just as I told you they would do. So don’t you or any of your friends think to the contrary. All the bank ever wanted was to get the money coming to them. Am home and not well. Write me if you want any further information. “Yours truly,
“White.
“Pierce City, Mo., 12-15-03.
“Dear Sir: Sale was made of plant yesterday by trustee and bought in by bank. No other bids. If Mr. Parke or his friends on his behalf want property, Bank will make deed for same upon its claim being paid.
“A. L. White.”
And also the following letter from Parke to White:
“I deposited to-day with the National Park Bank $2,190.06, as per your favor of the 18th, and hold their receipt therefor, of which they are to advise you by wire. Kindly have it made in name of John S. Cooke, trustee, and mail him at Pátterson, New Jersey. I am very thankful for the result, and desire to extend thanks for the opportunity.”
In respect to the condition of the mine, Parke gave Hewitt the following written statement to induce him to aid the Jovis Zinc Mining Company:
“Wm. Hewitt, Esq.:
“The financial condition of the Jovis Zinc Mining Co., for whose benefit your loaning two thousand dollars, taking as security for loan, a mortgage on the plant owned by the said company at Wentworth, Mo., is as follows: A Purchase money mortgage of twenty-two hundred ($2200) dollars. The mortgage to you two thousand ($2000) dollars, and a floating debt of about three hundred dollars ($300). The capital stock of the company is $50,000, of which $43,300 will be issued.
“Yours,
March 23, ’04. “H. B. Parke.”
The evidence of Hewitt and Cooke, the latter being president of the Jovis Zinc Mining Company, shows that Hewitt indorsed and agreed to take up four notes of five hundred dollars each for the Mining Company, and that said company executed the deed of trust to him as security and Hewitt took up and paid off the said four notes.
W. C. Yan Blarcom testified that he was a traveling
A L. White testified that he notified all the plaintiffs of the sale to take place under the bank’s mortgage; that there was no understanding between the bank and Parke that the bank would sell the property, bid it in and give Parke the option to redeem it, but after the sale he wired Parke that he or any of his friends could have the property at what it had cost the bank, but that the offer was limited to December twenty-fourth. Witness further testified: “I have written a good many letters as an individual, but appertaining to the bank, claiming that the bank is in no way responsible, for I did it to settle the claim of the bank, and also to give my friend, Mr. Wilson, a chance to get out of his trouble, and all communication of that kind are signed by me as an individual. Furthermore, at two different times the mining plant got into financial trouble, and through my efforts the workingmen were paid for their labor.” Witness also testified that after the Jovis Mining Company acquired the property, Parke took charge of it, as superintendent, and operated it for a time, and though from
The plaintiffs’ evidence shows that Parke is wholly insolvent. The most favorable deduction which can be drawn from the evidence is, that Wilson was misled by the promises and representations of White, president of the Pierce City National Bank, and by him induced to refrain from attending the foreclosure sale under the bank’s deed of trust, relying on White’s promise, that if Parke did not redeem the property, the plaintiffs should have the privilege of buying it from the bank at its cost to the bank. If this deduction be drawn, then the transfer of the property by the bank to Cooke, if made with the intent to cut out plaintiffs’ lien, was fraudulent as to plaintiffs. While we do not think the evidence warrants this deduction, but are of the opinion that Wilson, after seeing Parke’s telegram to White, relied more upon his belief that Parke would redeem the property than on any promise made to him by White to protect the plaintiffs’ lien, yet for the purpose of this case, we may concede all that plaintiffs claim, in respect to the alleged fraudulent conveyance from the bank to Cooke, and that Cooke held the property in trust for Parke. How about the conveyance from Cooke to the Jovis Zinc Mining Company? There is not a scrap of evidence in the record connecting it in the remotest degree with the fraud of the Pierce City Bank, Parke and Cooke. Parke, according to the evidence, is not a stock holder in the corporation, nor is there a ray of evidence showing or tending to show that the corporation did not purchase the property from Cook, in good faith and for a valuable consideration. A court may, from proven facts and circumstances, find a conveyance was made to defraud the creditors, of the grantor generally, or a particular creditor,
The judgment of the circuit court is therefore reversed, and judgment will be entered. here dissolving the injunction and dismissing plaintiffs’ suit at their cost.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.