Fowles v. Bentley

135 Mo. App. 417 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — The minutes of the judge on his docket, or endorsed on the wrapper or files, are no part of the record proper and can only be considered if made into the record by the bill of exceptions. The whole judgment, however, is before us, and it substantially sets out the finding.

The learned counsel for appellant, in a very elaborate brief and argument, as well as in the amended petition in the case, have invoked the provisions of section 3118, Revised Statutes 1899, in support of the effect, as constructive notice, of the record of the contract between appellant and Mrs. Bentley, claiming that under this section it did import constructive notice to the respondent Newberry of that contract. This contract,.as recorded, was not acknowledged by any of the parties to it. The record of it could only constitute constructive notice, under the general law, if it was an instrument entitled to be recorded. This is admitted by counsel. But it is claimed that notwithstanding this, its record imported constructive notice by virtue of the above section. It is also very frankly admitted by them that the decision of the Supreme Court of this State in the case of Williams v. Butterheld, 182 Mo. 181, is against their contention and an earnest argument is made to us against that decision, and we are asked to disregard it. We are precluded from doing this, as we are conclusively bound by it. In this Williams case, swpra, our Supreme Court has distinctly held that the term “such instrument,” as used in section 3118, means only such instruments of the class mentioned in the former clause, as shall have been so recorded for the period of one year prior to the enactment of the section; that is prior to 1887. We are therefore bound to hold that the record of the unacknowledged contract did not import constructive notice to any one. As there is no evidence whatever, even tending to show that the respondent New-berry had any actual notice or knowledge of the contract between appellant and Mrs. Bentley, no lien Avhat-ever could be fixed upon the land conveyed to him . by her, and the action as against him and as against the land in his ownership, must fail. The testimony is so unsatisfactory and unconvincing as to Sharp, the grantor of Newberry, having had any actual notice of this contract, that we might even be warranted in declining to hold the land in Newberry’s hands charged with any lien, for the reason that there is lack of notice to Sharp of the lien. Newberry would have a perfect right, even if he had himself had knowledge of the agreement, to have protected himself by the lack, of knowledge or notice on the part of his grantor. It appears that the Mexico Land and Loan Company, and its officers did have notice of this contract, but that notice is not carried forward to Sharp by any clear testimony and most certainly is not carried on to New-berry. Neither Pumphrey nor his partners are parties to this suit, or now interested in the land, nor had they or Sharp any interest in it when this suit was insti-luted.

It is claimed, however, that the court, even after refusing to establish a lien on the lands in the hands of Newberry, should have gone on and awarded judgment as against the respondent Mrs. Bentley' for the $450 which she had received from appellant, and we are further asked fco set aside the finding and decree in this case and to render one in accordance with the weight of the evidence and establish that claim as a lien against the land. We have carefully considered all the evidence in the case and have arrived at the conclusion that the appellant has made out no case for relief in a court of equity against either, of the defendants, the respondents here.

As the record of the contract carried no constructive notice, and as it is beyond question that respondent Newberry had no actual notice of it, all shadow of claim to a lien on the land in his hands disappeared. Counsel for appellant has collated a multitude of cases in support of the proposition that when a court of equity once acquires jurisdiction it will go on and administer complete justice between the parties over the subject-matter in issue between them — will even adjudge damages and enforce payment. That is very true, but it only does so, in support of and under and in furtherance of its chancery jurisdiction, and to enforce an equitable right, and when the money demand arises under such circumstances as- bring it within the equity jurisdiction of the court. It cannot usurp the functions of a court of law. It can, in aid of its decrees as a court of chancery, and to administer complete equity, use powers that ordinarily pertain to the courts of law. Rut it must do so in the execution of its chancery powers and must he proceeding under a cause Avithin its jurisdiction as a court of chancery. In this case then, reviewing all the evidence, Ave do not think plaintiff has proven any equitable right to the recovery of this money or to have it charged as an equitable claim against Mrs. Bentley. She did not grant any extension, even verbally, beyond ten days. If it is claimed that plaintiff Avas entitled to a judgment for this $450 by' way of damages, then we must not forget that this is a suit in equity, and that while, under our code, the distinction betAveen the forms of pleading in cases at Mav and in equity has disappeared, the distinction between legal and equitable causes, and the principles governing them are as well preserved and sharply defined as before the adoption of the code. [See Maguire v. Tyler et al., 47 Mo. 115.]

The very earnest contention of counsel for appellant, that even if the lien failed, a money judgment should have been rendered against Mrs. Bentley for the amount paid her by appellant, cannot,, therefore, be sustained, not for the reason claimed by her counsel and embodied in the judgment by the court, that her plea to the jurisdiction over her, as set up in her answer Avas a good plea, but because, on a review of all the testimony, we do not think plaintiff has established any equitable right to this money as against Mrs. Bentley. In this view .of the case, it is immaterial to consider or pass on the question as to whether the plea of Mrs. Bentley to the jurisdiction of the court by reason of service on her outside of the county of the court, set up both by motion and in her answer, should have been sustained, or the other question as to whether, by her pleading over and ansAvering, she lost the benefit of that plea. Oin these propositions we express no opinion. In onr opinion the judgment of the lower court, in that it found for both' defendants and dismissed the case is correct and its judgment is in that respect and to that extent affirmed.

All concur.