Lewis v. Booth

SEAWELL, J.

Plaintiff appeals from a judgment that she take nothing by her complaint. By the allegations of said complaint, plaintiff, Caroline H. Lewis, claiming to be the assignee of a deed of trust, alleged that a prior assignment of said deed of trust held by defendant, C. Morton Booth, was a false, forged and simulated assignment. She prayed that the assignment held by defendant be canceled, and that the record thereof be expunged from the Torrens title record.

The deed of trust in question was executed on August 23, 1932, by Leroy 0. Schultz to secure payment of a promissory note for $2,500. S. J. McElroy was named as payee of the note and beneficiary of the deed of trust. Said Mrs. McElroy was secretary to defendant C. Morton Booth, a practicing attorney. He testified that the note and deed of trust were executed in payment for legal services rendered and costs advanced by him for Schultz, and that Mrs. McElroy was named as payee and beneficiary to suit the joint convenience of Schultz and defendant. Mrs. McElroy testified that Booth promised her $500 of the proceeds to augment the salary which he was able to pay her, but beyond that she had no beneficial interest in the note and deed of trust, which at all times remained in the possession of Booth. In June, 1933, Mrs. McElroy was ill and planning to go to the hospital. At the request of Booth she indorsed the note and signed her name to a printed form of assignment of deed of trust in which the blanks had not been filled in. She also procured a notary to sign a blank acknowledgment attached thereto. The blanks were subsequently filled in to assign the deed of trust to Booth as of July 3, 1933. Mrs. McElroy testified that she herself did not complete the assignment because she was too ill at the time, but that she had executed it in blank with the understanding that it was to be used to assign said deed of trust to Booth.

Subsequently, while Mrs. McElroy was seriously ill and in desperate need of funds, she executed the assignment dated

[348]

July 26, 1933, to plaintiff Caroline H. Lewis, sister of Leroy 0. Schultz, maker of the note and deed of trust. All negotiations for this assignment were conducted by Schultz. According to Schultz, he procured Mrs. McElroy to execute this assignment upon promising to pay her $440, of which he then gave her $30 and since has paid her about $100. He testified that he procured the assignment to be made to his sister, plaintiff Caroline H. Lewis, because he was indebted to her in the sum of $3,000 for money advanced to him. His testimony as to his indebtedness to his sister is not convincing, nor is her testimony on this point satisfying. Mrs. McElroy testified that she signed this assignment to Caroline H. Lewis, together with other papers .presented to her by Schultz, when she was very ill. Included among the other papers which she signed, was a purported dismissal of an action brought in her name against Schultz to obtain delivery of the Torrens title certificate covering the property. This prior action resulted in a judgment for plaintiff McElroy, from which Schultz appealed. Upon motion of plaintiff, the appeal was dismissed by this court for failure of appellant to appear. It is doubtful whether Mrs. McElroy fully understood the nature of her acts at this time. The note and deed of trust, which at all times remained in the possession and under the control of defendant Booth, were not, of course, delivered to Schultz or to plaintiff Lewis. The assignment to plaintiff Lewis purported to also assign the note secured by said deed of trust and the money due and to become due thereon.