73 Mo. 57 | Mo. | 1880
I.
We do not regard the petition obnoxious to the objection that it does not state facts sufficient to constitute a cause of action, since it alleges that Amos R. Phillips executed and gave to the wife and co-plaintiff of Jno. Edmonson the note for $800; that the sum therein specified was part of the purchase price of a certain tract of the land, describing it; that Amos R. Phillips is dead; that by his will, since admitted to probate, he
II.
The objection is equally untenable that the husband should not have been joined as co-plaintiff. The statute expressly requires him to join in circumstances like those here presented, (2 Wag. Stat., p. 1001, § 8; R. S. 1879, § 3468;) and it makes no difference whether the property is the separate property of the wife or not; the husband must still be joined.
Besides, if the husband was improperly joined as co-plaintiff, defendant’s proper course was to have demurred. R. S. 1879, § 3515; Kellogg v. Malin, 62 Mo. 429.
III.
There is no doubt as to the jurisdiction of the circuit court. Such court is the possessor of chancery powers. It belongs to the ancient jurisdiction of chancery courts to enforce vendor’s liens, and it is well settled that such jurisdiction is not lost by reason of the fact that the legislature has thought fit to confer jurisdiction of a similar nature on courts of law. The ancient jurisdiction in such cases will remain in full force unless prohibitory legislation be interposed. Real Estate Sav. Inst. v. Collonious, 63 Mo. 290, and cases cited. There is no such legislation in this
IY.
Nor did the allowance in the probate court of the note given for the interest in the land present any barrier to enforcing the vendor’s lien. Both methods of procedure were open to the owner of the note, and she was confined, to neither. In other words, the status of the holder of the note, her rights and her remedies were not diminished because holding an imperfect instead of a perfect mortgage, in which last ease no doubt would exist that the holder of the note might not only have the same allowed in the probate court, but might afterward proceed to foreclose the mortgage also. The enforcement of a vendor’s lien, an imperfect mortgage, is but analogous in its objects and incidents to the foreclosure of an ordinary mortgage.
Y.
And we do not think the complexion of this case altered, so far as concerns the present proceeding, merely because the sheriff sold, in a partition suit, the interest of the wife in the land. She, as one of the heirs of her father, could doubtless have sold her interest, and would then have retained a vendor’s lien for the purchase money, and the fact that the sheriff acted as the agent of the heirs and took notes from the purchaser to them respectively, cannot in anywise affect their rights or their remedies. The land had been conveyed by the sheriff to Amos R. Phillips, the purchaser, and, if the present plaintiff' could not maintain this proceeding to enforce a vendor’s lien, the ultimate result would be, it could not be enforced at all. We are not of opinion that either the reason or the law of the case favors any such result.
YI.
Are the allegations of the petition to be taken as ad
Prior to the amendment of 1875, just quoted, the statute then in force provided that: “ The answer of the defendant shall contain: 1st, A spiecial denial of each material allegation of the petition controverted by the defendant.” 2 "Wag. Stat., 1015, § 12. It .would scarcely have been contended under that statute that an answer was good which stated that “ defendant specially denies each material allegation of the petition.” And yet, by parity of reasoning, if merely following the language of the statute is sufficient, the denial in the hypothetical case would be well enough, if the one being considered is tobe thus regarded.
A recent writer on code pleading, Judge Bliss, remarks on the point under discussion : “ Whether the denial be general or special — that is, whether the defendant deny all the plaintiff’s material allegations or a part only — it must clearly and unequivocally appear what he intends to deny.” Bliss Code Plead., § 331. In the present instance what allegations of the petition does the defendant intend to deny ? This question can only be satisfactorily answered when we ascertain what meaning he attaches to the qualifying word “ material.” It is quite obvious that the pleader assumes to himself to determine what is or is not material, thus leaving the court and the adverse party to conjecture his meaning, while he retains the signal advantage of being permitted to say that his denial is broad or narrow ; that he denies a single allegation of the petition or all of them, as best suits his convenience in the exigencies incident to the trial. We think
But, notwithstanding this is so, yet the plaintiffs have treated the first paragraph of the answer as a general denial. They might, under the statute, have compelled defendant to have made his denial more definite and certain, but this they did not do, and having proceeded with the cause as if a general denial were in, they will, on the principle of the rule declared in Henslee v. Cannefax, 49 Mo. 295, and subsequently followed in Leabo v. Goode, 67 Mo. 126, and in Simmons v. Carrier, 68 Mo. 416, be precluded from* gainsaying the sufficiency of the answer on the point being discussed. As the denial of the first paragraph of the answer must, in the circumstances here presented, be held good, the allegation of the petition cannot be taken as confessed, and consequently the objections urged as to the lack of testimony in certain particulars, must be deemed valid objections; and the case of plaintiffs not made out by the evidence adduced.
VII-
There was no necessity for a reply to the new matter set forth in the second paragraph of the defendant’s answer, and for these reasons: If, as already seen, the allowance in the probate court did not preclude plaintiffs from enforcing a vendor’s lien, then the allegation of such allowance needed no denial.
A similar remark applies to the allegation that the probate court had exclusive jurisdiction. It is well settled that consent of parties cannot confer jurisdiction. If consent of parties cannot do this, neither can their admission or denials have that effect. If the circuit court had jurisdiction of the cause, and so we have decided, it matters not what the parties admitted or what they denied respecting the jurisdiction of the probate court. .