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his entire will, and give effect to it, when not not construe the provision to authorize a mortin conflict with recognized rules of law.
gage. (Ed. Note.-For other cases, see Wills, Cent. (Ed. Note.-For other cases, see Executors Dig. $$ 952, 955, 957; Dec. Dig. $ 439.*) and Administrators, Cent. Dig. $8 614-620;
Dec. Dig. § 151.*] 3. WILLS (8 672*)-CONSTRUCTION-CREATION 10. EXECUTORS AND ADMINISTRATORS (8 142*) OF TRUSTS.
-POWERS-SALE OF LAND. A testator owning chiefly real estate and
Where an executor authorized by will to some personal property of speculative value, sell real estate exercises the power of sale of who directed his executors to pay specified sums land incumbered by a lease made by testator, to trust companies, to pay specified sums in the sale must be made subject to the rights installments to beneficiaries named, with gift of the lessee. over on their death, and who directed the exec
[Ed. Note.-For other cases, see Executors utors to close up the estate as speedily as possible, created a trust for the benefit of the bene- and Administrators, Cent. Dig. § 577; Dec. ficiaries named.
Dig. 142.*] [Ed. Note. For other cases, see Wills, Cent. Appeal from Pulaski Chancery Court; Jno. Dig. $$ 1579-1581; Dec. Dig. 8 672.*]
E. Martineau, Chancellor. 4. EXECUTORS AND ADMINISTRATORS (8 137*)
Suit by A. M. Heiseman and another, exPOWERS-SALE OF LAND.
ecutors of Abe Stiewel, deceased, against An executor has no power to sell the land Mrs. Emilie Lowenstein and others, for the of his testator, unless directed to do so by the will, either expressly or by necessary implica- construction of the will. From a decree sustion.
taining a demurrer to the complaint, plain(Ed. Note.-For other cases, see Executors tiffs appeal. Reversed and remanded, with and Administrators, Cent. Dig. 88 557-559, directions. 60642; Dec. Dig. § 137.*]
Appellants, as executors of the will of 5. EXECUTORS AND ADMINISTRATORS (8 138*)— Abe Stiewel, deceased, instituted this action POWERS-SALE OF LAND.
A testator, who directs his executor to in the chancery court against appellees, who dispose of his real estate, thereby confers on the are devisees and legatees under the will. executor power to execute the requisite deeds of The object of the complaint is to have a conconveyance.
struction of the will and the directions of [Ed. Note.-For other cases, see Executors this court as to the duty and power of the and Administrators, Cent. Dig. $8 560–566, 568-executors in selling, mortgaging, and leas575; Dec. Dig. § 138.*]
ing the lands of their testator. Abe Stiewel 6. EXECUTORS AND ADMINISTRATORS ($ 138*)- died in Little Rock, Pulaski county, Ark., on POWERS-SALE OF LAND.
the 25th day of August, 1913, and the will Any words in a will which show an intention to confer on the executor power to sell real was duly admitted to probate, and appelestate and execute the requisite deeds, or any lants qualified as executors under the will. form of a will which imposes duties which can- The will is as follows: not be performed without a sale, necessarily
"1. I desire that all of my debts shall be creates a power of sale.
paid in full. (Ed. Note.-For other cases, see Executors “2. It is my desire that my sister, Mrs. Emiand Administrators, Cent. Di $8 560-566, 568– lie Lowenstein, in addition to insurance for 575; Dec. Dig. 8 138.*]
one thousand ($1,000.00) dollars in the Order
of B'nai Brith, which she holds on my life and 7. EXECUTORS AND ADMINISTRATORS (&$ 138, money she has on deposit with me, shall re151*) - PowERS SALE OF LAND MORT-ceive from my estate the sum of twenty thou
sand ($20,000.00) dollars and interest in the Where the bulk of the estate of a testator, | manner herein provided for, as follows, to wit: who directed his executors to deposit specified That is to say, the executors of my will shall sums with trust companies to pay to named ben
cause to be deposited in a proper and solvent eficiaries, was real estate, and the testator di- trust company the sum of twenty thousand rected the executors to close up the estate aş ($20,000.00) dollars at the best rate of interest speedily as possible, so that the creditors and they can obtain therefor to the credit of said beneficiaries might promptly receive what was Emilie Lowenstein conditioned that she sball due them, the executors had power to sell, but not draw exceeding the sum of two hundred not to mortgage, the estate.
($200.00) dollars per month so long as she (Ed. Note.-For other cases, see Executors may live or the said fund may last; said monand Administrators, Cent. Dig. $8 560-566, 568- ey to be so deposited as soon as an order, if 575, 614-620; Dec. Dig. $$ 138, 151.*] required, can be obtained from the probate
court having jurisdiction of my estate to do so. 8. EXECUTORS AND ADMINISTRATORS (8 151*)— "2. Should my said sister die before the said POWERS-MORTGAGES.
sum is exhausted then her son, Julius Frank, if A mere power of sale of real estate con- living shall receive five thousand ($5,000.00) ferred on executors by will does not include a dollars of said sum so remaining to be paid to power to mortgage.
him in like manner, that is, at the rate of two (Ed. Note.-For other cases, see Executors hundred $200.00) dollars per month by said and Administrators, Cent. Dig. 88 614-620; trust company and the remainder of said sum Dec. Dig. § 151.*]
of twenty thousand ($20,000.00) dollars shall
be disposed of as hereinafter set forth. 9. EXECUTORS AND ADMINISTRATORS (8 151*) — "3. It is my desire that my sister, Mrs. POWERS-MORTGAGES.
Fannie Shield, shall receive from my estate the The court, in construing the provisions of a sum of fifteen thousand ($15,000.00 dollars, will conferring power on the executor, must seek and interest, in the following manner, to wit: to give effect to the intention of testator, and, That is to say, the executors of my will shall where the will merely authorizes by implication cause to be deposited in a proper and solvent the executor to sell real estate, the court may trust company the sum of fifteen thousand *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
($15,000.00) dollars, at the best rate of interest | ($500.00) dollars as soon as they obtain the they can obtain therefor, to the credit of said order, if required, of said probate court to do so. Fannie Shield, conditioned that she shall not “10. It is my desire that my nieces, Gertie draw exceeding the sum of two hundred ($200.- Meyer, Lillian Meyer, Sadie Meyer, and Hulda 00) dollars per month so long as she may live Meyer, shall each receive from my estate the or the said fund may last, said money to be sum of twenty-five hundred ($2,500.00) dollars deposited as aforesaid as soon as an order, if to be paid by my executors to Rudolph Richrequired, can be obtained from the probate court ard, of Selma, Alabama, in trust for them, conhaving jurisdiction of my estate to do so, and ditioned that he shall pay over said sum in such if any part of said fund shall remain on hand installments or manner as to him may seem at my said sister's death it shall be disposed of best calculated to meet their needs. But in as hereinafter set forth.
any event to be paid over on the marriage of “4. It is my desire that my sister, Mrs. Julius each of them; in the event either of said nieces Meyer, shall receive from my estate the sum of sball die before the said legacy shall be paid fifteen thousand ($15,000.00) dollars free from to her the same shall go to the surviving ones the claims or control of her husband or her among my said nieces. In the event of the sons; said sum to be forwarded by my said marriage of any of said nieces their husband executors to Rudolph Richard, of Selma, Ala- shall have no control over said amount; should bama, son-in-law of said Mrs. Julius Meyer, as any of said nieces die before me the sum so soon as the order, if required, of said probate devised shall go as hereinafter provided. court can be obtained so to do, conditioned that “11. It is my desire that my niece, Carrie said Rudolph Richard shall deposit said money Mothner (née Richard), shall receive from my in some solvent trust company at a fair rate estate the sum of twenty-five hundred ($2,500.of interest and that my sister, Mrs. Julius 00) dollars and interest in manner following, Meyer, shall not draw exceeding the sum of to wit: My executors shall as soon as an two hundred and fifty ($250.00) dollars per der, if required, of said probate court shall be month so long as she may live or the said fund obtained so to do, cause to be deposited in a may last. Should my sister die before the said proper and solvent trust company to her credit sum is exhausted, then her four (4) daughters at the best rate of interest they can obtain the named Lillian, Sadie, Gertie, and Hulda, are to said sum conditioned that she may draw not be the recipients of the two hundred and fifty exceeding one hundred ($100.00) dollars per ($250.00) dollars per month in lieu of their month thereof so long as she may live or said mother, until their death, or the fund is ex- fund shall last, and her husband shall have hausted.
no control over the same and if any of said 45. It is my desire that my brother, H. I. amount is still on hand at her death it shall Stiewel, in addition to any indebtedness he now be given to her children as if she was living. owes me (which I hereby remit), shall receive "12. To my nephew, Morris S. Richard, I from my estate the sum of ten thousand ($10,- bequeath fifteen hundred ($1,500.00) dollars in 000.00) dollars, and interest, to be paid to addition to the indebtedness he now owes me bim by my executors as follows, to wit: That (which I remit), and to my nephew, Sidney is to say, they shall pay to him the sum Richard, I also bequeath fifteen hundred ($1,of five hundred ($500.00) dollars in cash and 500.00) dollars, which said sums my executors, the sum of nine thousand, five hundred ($9,- as soon as an order can be obtained, if required 500.00) dollars shall cause to be deposited in so to do, shall cause to be deposited in some a proper and solvent trust company at the best proper and solvent trust company at the best rate of interest they can procure therefor, to rate of interest they can obtain in the names the credit of said H. I. Stiewel, conditioned of said nephews respectively, conditioned that that he shall not draw exceeding the sum of neither of said nephews shall draw exceeding one hundred and fifty ($150.00) dollars per fifty ($50.00) dollars per month of said fund, month so long as he may live or the said fund so long as they may respectively live or said may last; said sum to be so deposited as soon fund may last. Should any part of either of as the order, if required, of said probate court said sums remain on band at the death of eican be obtained so to do. Should any of the ther of my said nephews it shall be disposed said sum of nine thousand, five hundred ($9,- of as hereinafter set forth. 500.00) dollars and interest remain on hand on “13. My executors shall cause to be paid out the date of his death it shall be disposed of as
of my estate to my sister-in-law, Mrs. Hattie hereinafter set forth.
Stiewel, in trust for her three children, the “6. It is my desire that my nephew, Julius sum of twenty-five hundred ($2,500.00) dollars as Frank, shall receive from my estate in addition soon as they can get an order, if required, of the to the legacy referred to in the second paragraph said probate court so to do; in addition to said of this will the sum of one thousand ($1,000.00) sum they shall cause to be deposited in some dollars from my said executors as soon as an
proper and solvent trust company the sum of order, if required, can be obtained from said ten thousand ($10,000.00) dollars at the best probate court to do so.
rate of interest they can obtain, and the said "7. It is my desire that my nephew, Albert and Sadie Stiewel, and my nephew, Morris
sum shall be paid pro rata to my nieces, Theresa Shield, and my niece, Carrie Shield, shall re-Stiewel, so that each shall receive a spectively receive from my estate the following thereof'when they shall become of age or mar.
third sums, to wit: Albert Shield, one thousand ($1,000.00) dollars and Carrie Shield two thousand, shall die one before the other, the share of such
ry; and if either before date of distribution five hundred ($2,500.00) dollars, from my executors as soon as an order, if required, can be ob- ever accumulating on said amount may be used
one shall go to the others, the interest, howtained from said probate court to do so. “8. It is my desire that my executors shall of such children and may be paid over to their
to defray expenses of the support and education pay the following amounts respectively to my guardian or mother for this purpose. nephews and nieces hereinafter named in this
"14. My executors shall, as soon as an order, paragraph as soon as the order, if required, of if required, of said probate court can be obsaid probate court can be obtained to do so, to tained so to do pay to my four nephews, Harry wit: One hundred ($100.00) dollars each to Vernon Stiewel, Robert Stiewel, Louis Stiewel, my niece, Edna Shield, my nephew Julius and Roy Julian Stiewel, two hundred and fifty Shield, my nephew Morris M. Meyer, my neph-($250.00) dollars each. ew, Arthur Meyer, my niece, Elsie Řichard *15. If any legatee shall die. before me the (née Meyer).
legacy left him or her by this will shall lapse. “9. I desire that my executors shall pay over *16. All sums or amounts not required to pay to my niece, Elsie Richard (née Meyer) for her debts, cost of administration, executors and oththree (3) children the sum of five hundred er expenses and all amounts or parts of my es
tate not above specifically devised, shall go to | real estate mentioned in the will cannot be my heirs to correspond in the distribution there sold to advantage at public sale. of to the proportion which the several legacies
The chancellor sustained a demurrer to above given bears to the entire value of my estate.
the complaint of appellants, and the case is “17. I nominate as executors of this will and here on appeal. testament, A. M. Heiseman, Jacob Niemeyer, and Morris M. Cohn, and in case of death, or Morris M. & Louis M. Cohn, of Little other disqualification or refusal of either of Rock, for appellants. said persons to act as such then the remaining two may act and selecting a third person to act with them as such executor or two may act HART, J. (after stating the facts as above). but not less than two executors shall act and  In the case of Williamson v. Grider, 97 the sum of $5,000 is hereby set apart to be Ark. 588, 135 S. W. 361, the court said: and constitute full compensation for all services performed by said parties as such execu- "Where a trust is created by a will, a court tors; if they desire to charge that sum or of equity has jurisdiction to construe the will. any part thereof. I desire that the said per- This power is incident to the jurisdiction which sons may act as such executors without being courts of chancery have over trusts." And required to give bond as such as it is my desire this upon the theory "that 'as chancery will that said executors shall close up the estate com- compel the performance of trusts, so it will asmitted to their charge as peedily as possible so sist the trustees and protect them in the due that the creditors of my estate, if there are performance of the trust, whenever they seek any, and my legatees may promptly receive what the aid and direction of the court as to its esis due to them.
tablishment, management, and execution.'' "18. Should my estate be insufficient in
So, also, in the case of Davis v. Whittaker, amount to pay all of the legacies above mentioned after payment of expenses, debts, and 38 Ark. 435, the court said: executors and costs, the legacies shall be pro- "Such suits
are within the ordinary portionately reduced.”
jurisdiction of courts of equity. They are comThe following facts were proved:
monly entertained at the suit of the executor The
trustee seeking the advice, aid and proappraised value of the estate left by the tes- tection of the court in the execution of the tator is about $200,000. The debts owed by trust," etc. the estate amount to about $100,000. The
 In regard to the construction of wills, testator left very little cash, and his estate in the case of Parker v. Wilson, 98 Ark. 553, comprised both real and personal property, 136 S. W. 981, the court said: but consisted chiefly of real estate. His per
"The power of one, legally competent to make sonal property consisted chiefly of stocks in a will, to dispose of his property as he sees certain corporations. He owned 3,150 shares fit, subject to the restrictions provided by the of Arkansas & Arizona Copper Company construing the provisions of a will, the inten
statutes, is a legal incident to ownership. In stock; 32642 shares of stock in the National | tion of the maker is first to be ascertained, and, Copper Mining Company; 70 shares of stock when not at variance with recognized rules ot in the Ozark Diamond Company; and 310 law, must govern. The intention of the testa
tor must be gathered from all parts of the will, shares of stock in the Southern Trust Com- and such construction be given as best comports pany of Little Rock. The evidence shows that with the purposes and objects of the testator, this stock could not be disposed of to advan- and as will least conflict." tage by public sale, as required by statute. See, also, Gregory v. Welch, 90 Ark. 152, Part of the real estate owned by the testator | 118 S. W. 404. is situated on Second and Main streets, in the  Tested by these principles, we think the , city of Little Rock, for which he paid $75,000.) will in question created a trust. The testaThe present value of it is estimated at tor was a business man of long experience $135,000. On the day Mr. Stiewel died, he and knew the extent of his indebtedness and made an agreement with the Bankers' Trust the amount and kind of property held by him. Company, whereby he agreed to give it a He knew that he had very little cash on hand lease of that property for a period of 30 and that his estate consisted for the most years at a rental of 6 per cent. on a $150,000 part of real property and the balance of pervaluation for the first 10 years, 6 per cent. sonal property of speculative value. After on a valuation of $160,000 for the next 10 the payment of his debts, he directed that years, and 6 per cent. on a valuation of legacies should be paid by his executors to $170,000 for the third 10 years. By the same
certain of his relatives; that these legacies document he gave the bank an option to buy should be paid in cash, and the amount therethe property for the sum of $150,000, pro- of should be deposited in trust companies to vided it exercise the option within one year. be paid to the legatees in the manner directed It was also provided that Stiewel should have by the will. The seventeenth clause of his the right to sell to any other purchaser if will provided that: he desired to do so, with the privilege to mitted to their charge as speedily as possible
His executors "shall close up the estate comlessee of having the right to buy at the same
so that the creditors of my estate, if there are price. After Stiewel's death, bis heirs and any, and my legatees may promptly receive what lega tees named in his will, who are appel- is due to them.' lees in this action, executed a document The testator also recognized that his whole whereby they ratified and carried into effect estate might be insufficient for the purpose the said agreement. The evidence shows that of paying his debts and the specific legacies this property cannot be sold to advantage provided in the will; for the last clause of “Should my estate be insufficient in amount | Bloomer v. Waldron, 3 Hill (N. Y.) 361; Ferto pay all of the legacies above mentioned aft- ry v. Laible, 31 N. J. Eq. 566; Willis v. Smith, er payment of expenses, debts, and executors 66 Tex. 31, 17 S. W. 247; Hubbard v. Gerand costs, the legacies shall be proportionately reduced."
man Congregation, 34 Iowa, 34; Cumming v. [4, 5] This brings us to the question of Williamson, 1 Sandf. Ch. (N. Y.) 17. This rewhether the executors were given the power sults from the fact that a mortgage is regard. in the will to sell, mortgage, or lease the ed as a security for debt rather than a condiproperty. It is well settled that an executor tional estate, and hence its execution is regardhas no power to sell the land of his testator ed as creating an incumbrance rather than as unless directed to do so by the will either transferring the title. That is to say, a mort. expressly or by necessary implication.
In gage is treated as a mere security for a debt, this case the will does not give the executors and the legal estate can only be used for the express authority to sell the real estate. It purpose of enforcing the payment of the debt is equally well settled that, because the tes- secured. The cardinal principle that governs tator has a right to dispose of his real es- in the construction of powers is to effectuate tate as he sees fit, if he directs that to be the intention of the donor; but we cannot done by his executors, which necessarily im- gather from the terms of the will any intenplies that the estate is first to be sold, a pow- tion on the part of the testator looking er is given by implication to the executors to a mortgage of his estate. The will does to make such sale and execute the requisite not in express terms authorize the executors deeds of conveyance. Going v. Emery, 16 either to borrow money or to mortgage the Pick. (Mass.) 107, 26 Am. Dec. 645; Lippin- real estate. By the terms of the will the execcott's Ex’rs v. Lippincott, 19 N. J. Eq. 121. utors were directed to close up the estate In the latter case the court held:
as speedily as possible and to pay the debts “The appointment of one as executor of a of the testator and the legacies named in the will that directs lands to be sold does not, of will promptly. The testator anticipated that itself, confer on him the power to sell. But if the whole estate might be necessary to pay all the executor is directed by the will, or bound the legacies and to pay his debts. Therefore by law, to see to the application of the proceeds of the sale, or if the proceeds, in the dis- in the last clause of his will he provided that, position of them, are mixed up and blended with | if his estate was not sufficient to pay all the the personalty-which it is the duty of the ex- legacies after the payment of his debts, the ecutor to dispose of and pay over-then a pow- legacies should be proportionately reduced. er of sale conferred on the executor by implication."
All this precludes the supposition that a See, also, May et al. v. Brewster et al., 187 mortgage was ever within the intention of Mass. 524, 73 N. E. 546.
the testator. See Williamson v. Grider, su In 2 Perry on Trusts (4th Ed.) 8 776, pra. And, as we have already seen, a power the author says:
of sale does not include the power to mort“No particular form of words is necessary to gage except in those states where a mortgage create a power of sale. Any words wbich show is characterized as a conditional sale instead an intention to create such power, or any form of being regarded as a security for a debt. of instrument which imposes duties upon the trustee that he cannot perform without a sale,
 We do not deem it necessary to decide will necessarily create a power of sale in the whether or not the executors have the pow. trustee."
er to make a lease for a long term of years, [7-9] Tested by these legal principles, we as it does not seem to us that it will be neces. think the will conferred upon the executors sary for the executors to do this. It appears the power to sell the lands of the testator. from the allegations of the complaint that As we have already seen, the bulk of his es before his death Stiewel executed a lease for tate consisted of real property, and several | the term of 30 years to the Bankers' Trust legacies were left which the testator directed Company on the property at the corner of to be paid in cash. His directions in this re- Second and Main streets in the city of Little spect could not be complied with unless the Rock, and, of course, any sale of that propexecutors had the power to sell the real es- erty by the executors will be made subject tate left by him. He directed his executors to the rights of the lessee under the lease. to close up the estate committed to their It may be said, however, that the will places charge as speedily as possible so that his the control and management of the estate in creditors might be promptly paid and the the hands of the executors, and they will legatees promptly receive what is due them. have power to make leases for such length of We now come to the question as to whether time as may be necessary until they exercise a power of sale includes a power to mort the authority to sell and dispose of the land. gage. There is some conflict in the author- It follows that the decree will be reversed, ities on this question, but we believe that the and the cause remanded, with directions to better reasoning, if not the weight of author- the chancellor to enter a decree in accordity, is to the effect that a mere power of sale ance with this opinion. does not include a power to mortgage. Stokes v. Payne, 58 Miss. 614, 38 Am. Rep. 340; KIRBY, J., did not participate.
leged that the note and deed of trust were DELOLME v. STATE SAVINGS BANK OF executed on the 2d day of October, 1911. SPRINGFIELD, MO., et al.
It was further alleged that on the 11th day (No. 41.)
of December, 1911, the State Savings Bank (Supreme Court of Arkansas. June 15, 1914.) of Springfield, Mo., loaned N. A. Williams, 1. APPEAL AND ERROR ($ 1009*)-FINDINGS, the payee in the note, the sum of $500, takCONCLUSIVENESS.
ing the joint note of N. A. Williams, C. D. A finding of the chancellor, not clearly against the preponderance of the 'evidence, will Williams, and Ray Bidell, and that as furnot be disturbed on appeal.
ther security N. A. Williams transferred to [Ed. Note.-For other cases, see Appeal and the bank the note in suit for $1,000 and the Error, Cent. Dig. 88 3970–3978; Dec. Dig. & deed of trust. The complaint alleged that 1009.*]
the bank was an innocent purchaser of the 2. MORTGAGES (8 78*) – CANCELLATION
note. It alleged that no part of the note GROUNDS-FRAUD-ELEMENTS.
To justify the cancellation of a note and had been paid; that there was due thereon deed of trust on the ground of fraud, it must the sum of $500, with interest at the rate of appear that the fraud was material, and re-8 per cent. per annum from the 11th day of ing of the instruments, that it worked an in- December, 1911, until paid; that the appellee jury to the party complaining, and that the Ray Bidell was the owner of the purported position of the parties was such that one must note and deed of trust, the same having been necessarily be presumed to act on the state; purchased by and assigned to him on the ments of the other, and that the party injured relied on the fraudulent statements of the oth - 10th day of June, 1912; that there was due er, and had the right to rely thereon.
upon the note the sum of $1,000, with inter[Ed. Note.-For other cases, see Mortgages, est at the rate of 8 per cent. per annum, comCent. Dig. $8 177-181; Dec. Dig. $ 78.*]
pounded annually, from the 2d day of Octo3. SALES (8 38*)-FRAUD-EVIDENCE.
ber, 1911, until paid. Appellees further set Where a purchaser of a restaurant busi- forth in their complaint that the description ness visited the restaurant and for a week or 10 days examined it with full opportunity to in- in the alleged deed of trust was incorrect, quire as to the value of the equipment and and asked that same be corrected so as to business, he could not rely on statements of properly describe the land intended to be invalne and maintain a suit to rescind the transaction on the ground that such representations cluded in the deed of trust. Appellees asked were false.
for judgment against appellant and his wife [Ed. Note.-For other cases, see Sales, Cent. for the sum of $1,000 and interest, and that uig. $$ 65–77, 85; Dec. Dig. § 38.*]
said judgment be declared a lien upon the 4. TRIAL ($ 365*)-FINDINGS-CONSTRUCTION. lands set forth in the deed of trust; that
A general finding for plaintiff, suing on a the deed be reformed so as to describe the note and deed of trust given in payment of the price of a restaurant purchased by the maker same correctly, and that unless the judgof the note and grantor in the deed, relying on ment was promptly paid, the lands be orderfraud inducing the purchase, is a finding that ed sold to satisfy the same. no false representations inducing the transaction were made, and justifies a judgment for
The answer denied the material allegations plaintiff, where the finding is not clearly against of the complaint, and set up, by way of the preponderance of the testimony.
cross-complaint, that the appellant and his (Ed. Note. For other cases, see Trial, Cent. wife were citizens of the French Republic, Dig. $$ 871-874; Dec. Dig. § 365.*]
and were temporarily sojourning in the city Appeal from Independence Chancery
of Springfield, Mo., at the time of the execuCourt; Geo. T. Humphreys, Chancellor.
tion of said note and deed of trust; that they Action by the State Savings Bank of were scarcely able at that time to compreSpringfield, Mo., and others against Regis hend or speak the English language; that on Delolme. From a judgment for plaintiffs, de the 30th day of September, 1911, they were fendant appeals. Affirmed.
in Springfield, Mo., in search of some busiThis suit was instituted by the appellees ness establishment, and came in contact with against the appellant and his wife to recover Ray Bidell, who was a real estate agent, who judgment on a note executed by them to one had listed for sale a certain restaurant, the N. A. Williams for the sum of $1,000, due property of N. A. Williams; that Bidell adone year from date, bearing interest at the vised Delolme and his wife to purchase the rate of 8 per cent. per annum from date un- restaurant of Williams and to pay for same til paid. Appellees also asked that a certain the sum of $1,000; that they advised Bidell deed of trust, executed by appellant and his and Williams that they could not purchase wife to secure said note, be reformed so as the restaurant without first inspecting the to correctly describe the land intended to be same; that they afterwards took a meal at the embraced in said deed of trust, and that the restaurant, and when asked by Bidell what same be foreclosed. It was alleged that the they thought of the restaurant, they replied note was executed for the purchase money of that they were unable to judge the same by a restaurant and rooming house, together one visit; that thereupon Bidell guaranteed with the furniture and fixtures therein lo- the Delolmes that the restaurant was well cated, by appellant and his wife from one N. | known to him, and was a prosperous conA. Williams, at Springfield, Mo. It was al- | cern; that Bidell then informed them that