175 Mo. 455 | Mo. | 1903
— This suit was instituted in the circuit court of Butler county, Missouri, in February, 1897. The object of the bill was to procure a perpetual injunction against the Nelson' Distilling Company and ■John H. Souders, sheriff of said county, to restrain them from selling the south part of lot number 63 in the city of Poplar Bluff, in Butler county, under a deed
Thereafter, on the next day, the sheriff, as substituted trustee, sold all the remaining property described in the deed of trust, and the Nelson Distilling Company became the purchaser thereof, through its attorney, Mr. H. B. Davis. On May 3, 1897, defendants filed their ahswer, which was a general denial.
On November 2, 1897, defendants filed their motion to dissolve the injunction, and on the same day plaintiffs filed an amended petition, which in substance alleged that in 1888 Henry FI. Miles was the owner of a part of lot 62 in the original town, now city, of Poplar Bluff, on which was located a hotel known as the Morris House, and also the lot in controversy in this suit, designated as part of lot 63 in said city; that Miles borrowed $6,000 from Judge. J. W. Emerson and gave three notes, two for $1,000 each, and the third for $4,000; that Miles paid off one of the $1,000 notes'; that while Emerson still held said notes and a deed of trust given by Miles and wife to secure the same, Miles sold the part of lot 63 now in suit to one Turner, and that Emerson agreed to release and did release said lot 63 from the incumbrance of said deed of trust; that said deed of trust conveyed not only the part of lot 62 on which the Morris Flouse was situated and said part of lot 63, but all of the furniture and hotel fixtures to secure said notes; that afterwards the title of Turner to the south part of lot 63 passed by mesne conveyances to the plaintiffs, Cohn and Pelz; that afterwards said Morris House property was sold under execution in favor of the Nelson Distilling Company and purchased by said company, and an action of ejectment was brought, under which possession was obtained by said company; that afterwards and when said notes were past due, the Nelson Distilling Company bought of said Emerson and he sold and transferred said notes to said Nelson Distilling Company; that thereafter, Ferguson,
The prayer is in the alternative, either .to set aside said sale and order a new sale, at which plaintiff offers and agrees to bid the whole amount of said mortgage debt and costs for said Morris House property, or to adjudge that in no event shall plaintiff’s lot 63 be subjected to more than its pro rata share of said debt in the' proportion of its value to the remainder of said property, excluding plaintiff’s improvements on said
The answer admits the deed of trust to Emerson, denies that Emerson released or agreed to release said lot 63. Alleges laches on plaintiff’s part, and charges that plaintiff has a complete remedy at law.
The evidence tended to establish the following state of facts:
On or about the first day of June, 1888, one Henry H. Miles was the owner of a part of lot 62 in the original town, now city, of Poplar Bluff, Missouri, on which was located a large hotel building, known as the Morris House, and worth about ten thousand dollars. He was also the owner of the lot in controversy in this cause, and known as a part of lot 63, in the said original town of Poplar Bluff. This lot was situated on a steep hillside, was unimproved at the time, and of little value, worth in its then condition from one hundred and fifty to three hundred dolía,rs. He also owned all the hotel, kitchen and dining-room furniture then in and used by the said Morris House. On the said first day of June, 1888, Miles borrowed from Judge Emerson $6,000, and executed therefor his three promissory notes, as follows: One note for $1,000, due one year after date; one note for $1,000, due two years after date; and one note for $4,000, due five years after date, all drawing interest at the rate of ten per cent. And on the same day, to secure the payment of the said notes, the said Miles and his wife conveyed to "William Ferguson, as trustee, the property known as the Morris House property, the lot in controversy in this cause, known and described as a part of lot 63 in the said original town of Poplar Bluff, and also all of the hotel, kitchen and dining-room furniture then in the said Morris House. On the 10th day of December, 1888, Miles paid to the said Emerson the first of the said above-described notes. Some time after that, Miles sold that part of lot 63 which was conveyed by the said deed of trust, to
The admissions of counsel for defendants show that, some time after the execution of the deed of trust from Miles to Ferguson, the defendant, the Nelson Distilling Company, obtained a judgment in the circuit court of Butler county, against Henry H. Miles and Laura A. Miles, for several hundred dollars; that execution was issued upon this judgment, and the same was levied upon the part of lot 62, in the said town of Poplar Bluff, known as the Morris House property; that the said property was sold under the said execution, and at the sale, the defendant, the Nelson Distilling ' Company, became the purchaser thereof; that thereafter the defendant, the Nelson Distilling Company, commenced its action of ejectment in the circuit court of Butler county, to recover possession of the said Morris House property, and that such proceedings were had as that the defendant, the Nelson Distilling Company, was put in possession of the said Morris House property under the judgment rendered therein, in the month of September, 1896, and that the said Nelson Distilling Company, remained in possession until after sále under the said deed of trust herein
The notes mentioned in the said deed of trust matured on the 1st day of June, 1893. 'The indorsements thereon show that all interest had been paid on the said notes to March 1,-1896. The following indorsements appear on each of said notes: “Without recourse, J. W. Emerson;” “Without recourse, S. M. Emerson.” In his deposition Judge Emerson explains these indorsements by saying that S. M. Emerson was his wife, and that his- indorsement thereon was made in order to enable Mrs. Emerson, in case of his death, to handle the said notes without the necessity of taking out letters of administration. That on the first day of December, 1896, the notes secured by the said deed of trust were assigned by him, without recourse, to the defendant, the Nelson Distilling Company, and he had Mrs. Emerson to make the second indorsement thereon, and delivered them to the Nelson Distilling Company. These notes were then long past due.
Afterward, and some time in February, 1897, the-1 defendant, John H. Souders, the then acting sheriff of Butler county, advertised that he would on February 26,.1897, as trustee in the said deed of trust, sell at public vendue, to the highest bidder, for cash in hand, all of the real and personal property described in the-deed of trust, and including the said property so bought by these plaintiffs and improved as. aforesaid. On the said 25th day of February, 1897, the plaintiffs herein sought and obtained from the judge of the circuit court, in vacation, a temporary restraining order, restraining the defendants from selling or in any manner interfering with the lot or parcel of land so bought and improved by these plaintiffs, until the further order of the court. On the said 26th day of February, 1897, the defendant Souders sold the said property known
The court found on the trial of this cause, that the personal property was worth $1,200 at the time of the sale. “The court further finds that thereafter the whole of the said personal property was, by virtue of said arrangement, released and surrendered by the said Nelson Distilling Company to the said Henry H. and Laura A. Miles, and the court further finds that the defendants should be required to give credit on the said notes for the full value of the said personal property so released by them, to-wit, the sum of $1,200, before being allowed to sell the said property hereinabove' described as owned by these plaintiffs; and after giving credit on
The court, by its said decree, made the temporary restraining order perpetual, and forever enjoined the defendants, and each of them, from selling or in any manner interfering with the said property belonging to these plaintiffs under the said deed of trust. And that the said deed of trust be cancelled, set aside and for naught held, in so far as it affects the property of these plaintiffs.
I. The proposition is argued at considerable length that the court erred in permitting plaintiffs to amend their petition; that it was a different cause of action.
The original petition sought a perpetual injunction restraining defendants from, selling the part of lot 63 in Poplar Bluff involved in this suit to satisfy the deed of trust of. defendant, the Nelson Distilling Company, - on the ground that the original holder of said deed of trust, Judge Emerson, had released or agreed to release this lot when ]\Iiles, the mortgagor, sold it to Turner, under whom plaintiffs claim and deduce title. That claim was renewed in the amended petition. In the meantime, however, and before the suit came on for trial, a new state of facts not existing when the first petition was filed had arisen.
The' defendants being enjoined only from selling lot 63 proceeded to foreclose the deed of trust on the Morris House property, both real and personal. Out of that sale new equities had arisen in addition to those stated in the original bill, to-wit, that by said sale.the debt had been fully satisfied in equity, and thus another ground for a perpetual injunction had accrued to plain
The relief sought was confined to the same subject-matter and was the same in each. The new facts alleged were in no manner inconsistent with those alleged in the original petition, and had originated since the filing of the original.
Our civil code of practice recognizes the right to bring before the court new matter arising after the filing of the petition. Section 663, Revised Statutes 1899, provides that a party may be allowed to file an amended or supplemental petition and section 666 requires that such amended or supplemental petition shall set forth in one pleading, all matters necessary for the determination of the action.
In the old equity practice, supplemental bills were allowed to bring matters occurring after the filing of the original bill before the court. [2 Dan ’1, Chcy. PL & Pr. (6 Am. Ed.), 1516, and notes; Ward v. Davidson, 89 Mo. 455; Bliss on Code Pl., sec. 432.]
We think the amendment was properly allowed by the court. But if it was erroneous, that was waived by the action of defendants in pleading over after their motion to strike out was overruled. [Scovill v. Glasner, 79 Mo. 454; Fuggle v. Hobbs, 42 Mo. 541; Williams v. Railroad, 112 Mo. 485-6; Ely v. Porter, 58 Mo. 158.]
II. The circuit court very properly, we think, held the evidence insufficient to show that Judge Emerson released or agreed to release this south half or part of lot 63, from his deed of trust. This testimony was too inconclusive to base a decree upon it.
We are concerned with the question whether or not. defendants in equity released the personal property to Miles and wife and by so doing released plaintiffs’ lot entirely. The equities as between Miles, the mortgagor, and plaintiffs, his grantees, of a part of the mortgaged premises, in this lot 63, are well settled. Whatever the rights of Emerson or his assignee, the distilling company, to resort in the first instance to either or both of the parcels (the Morris House in Miles’s hands, or lot 63 in the bands of plaintiffs), it is plain that, according to equitable principles, it was the duty of Miles the mortgagor, to assume and pay the whole debt, and thus exonerate plaintiffs, his grantees, from the lien of the deed of trust.-
But whether the distilling company would have been compelled, as assignee and grantee of the Morris House, to have first exhausted its power of sale of that before moving against plaintiff’s lot, we have seen as a matter of fact he did so proceed and caused the Morris House and the personal property "to be sold first.
So that we must-now invoke another principle of equity and inquire into that sale. For although the equities as between Miles and plaintiffs, did not prevent the distilling company from enforcing its deed of trust for the $5,500, yet after it was advised of the sale of" this south half of lot 63 to plaintiffs and of their ereo
The circuit court so found, and was fully justified in so doing.
The circuit court held that before it could resort to plaintiffs ’ lot 63 it must first apply the $1,200 to its mortgage, and when that was done it was fully satisfied and thereupon decreed a perpetual injunction against the further enforcement of said mortgage against plaintiffs ’ lot 63. This was fully justified by the pleadings and evidence, and was a just and equitable disposition of the case, and the decree of the circuit court is affirmed.