130 Mo. 225 | Mo. | 1895
Lead Opinion
The present appeal deals with an issue in ejectment, upon which an equitable suit has been engrafted.
The record opens with a preliminary proceeding based on a petition (filed, September 17,1889) containing, first, a statutory count to quiet title to the land in dispute (R. S. 1889, sec. 2092), and, then, a count in equity to enjoin defendants from prosecuting certain actions for unlawful detainer and replevin until the determination of the title to the land.
Mr. Toms, the party in possession, was plaintiff in that petition, and Messrs. Orr, Harwood, Frederick and Oaks were defendants. In due course (upon proceedings not now questioned) a judgment in that cause was reached, commanding Mr. Harwood to bring an action, within a given time, to try the title to the land now in controversy, or be barred from thereafter asserting any claim thereto.
As to the other defendants in the first petition, similar orders were made. Messrs. Orr and Harwood were the only parties who moved in compliance with the order to bring suit. They instituted the action of ejectment which is now here by appeal.
Messrs. Frederick and Oaks became barred under
After Messrs. Orr and Harwood commenced this action (as required by the judgment to quiet title), the former, at an early stage, dropped out, and abandoned his claim, leaving Mr. Harwood as the sole plaintiff.
His petition, filed January 23, 1891, is in the ordinary form for an action of ejectment. The defendants therein named are Messrs. Toms, Aldrich, and Eloyd. The first is the real defendant; the others are in possession as his tenants.
The defendants answered, setting up a variety of facts, the substance of which will sufficiently appear in the course of the opinion. The defenses which are chiefly important are, first, that the indebtedness secured by the deed of trust (under which plaintiff claims) has been satisfied; and, secondly, that plaintiff is estopped, by the facts of the case, to assert the title on which he relies.
, We shall not find it necessary to go beyond the first of these defenses.
The cause was heard as one in equity, and the court directed a jury to report findings on ten interrogatories submitted to them at the close of the evidence.
The jury, however, disagreed as to all the interrogatories save one, though they reported their vote on each of them. They agreed on findings as to the-damages, rents and profits,- and were discharged.
The court then took the case, and ultimately found for the plaintiff for possession with damages and monthly rents. Judgment was entered to that effect;
We shall not attempt to give a full review of the '¡evidence; but only such a sketch of it as will make our rulings readily comprehensible.
Some interesting questions of law have been discussed in the briefs; but we believe that the result which the facts warrant can be reached without taking mp any of the mooted questions.
The nature of the action, as developed by the ■pleadings, is essentially equitable. The answer asks ■for a judgment canceling and discharging the deed of ".trust which forms the basis of plaintiff’s cause of ;action, and states a chain of facts leading to- that end. 'The chief stress of the answer is on the fact that there is no subsisting indebtedness to give the Rogers’ deed of trust (under which plaintiff claims) a standing as an incumbrance on the land. That is the leading issue. All parties have treated it in the trial court, and here, .•as belonging to the equity side of the court. We shall •assume the correctness of that view, without further comment.
As an equity case the facts are properly reviewable on appeal. We have, therefore, examined the whole record and shall endeavor to give, as shortly as possible, our conclusions therefrom.
Both parties claim title from Mr. Oaks; and both -claim through deeds of trust executed by him.
The plaintiff is a purchaser under the deed in which Mr. Rogers is named as trustee, which, for the sake of brevity, we shall call the Rogers mortgage.
Mr. Toms is the purchaser and in possession under the other deed of trust, which we shall call the Wilson mortgage.
The principal dates in the history of the titles are these:
January 1, 1883. Eogers mortgage executed and acknowledged, by Mr. Oaks and wife, to secure a $2,500 note and interest.
June 29, 1883. Eogers mortgage recorded.
August 22, 1889. Trustee’s sale and deed under Eogers mortgage to Mr. Orr. Acknowledged same day. (Not recorded at time of trial.)
August 23, 1889. Deed by Mr. Orr to the plaintiff. (Not.recorded at time of trial.)
Defendant’s title:
December 1, 1883. Wilson mortgage by Mr. Oaks and wife to secure a $2,000 note and interest; acknowledged December 20, 1883.,
December 25, 1883. Wilson mortgage recorded.
July 13, 1887. Trustee’s deed to Mr. Toms under Wilson mortgage; acknowledged same day.
August 3, 1887. Last named deed recorded.
The Wilson- mortgage, as all parties concede, was given by Mr. Oaks to secure a valid loan of money, as stated in that instrument.
It contained statutory covenants of general warranty, as well as express covenants against all other incumbrances. It gave no hint of any prior charge or incumbrance. Nor is it claimed that the lender, whose loan was secured by that mortgage, had any intimation or notice whatsoever of the Eogers mortgage, other than the constructive notice imparted by the record of that instrument.
The loan secured by the Wilson mortgage was made by the firm of Wilson & Company, of St. Louis, through negotiations conducted by Mr. Glazier, of Maysville, De Kalb county. The plaintiff and Messrs, Oaks, Frederick, and Orr lived in that vicinity.
Upon the delivery to Mr. Glazier of the secured note (signed by Mr. Oaks) and the Wilson mortgage,
The sale under the Rogers mortgage was made for the ostensible consideration of $250, as recited in the trustee’s deed. But Mr. Rogers, the trustee, testified that the purchaser (Orr) did not pay the purchase price to him; but that he (the trustee) left the deed to Mr. Orr with the plaintiff, at the request of the latter. The plaintiff made an indorsement on the note to the effect that $200.50 were received upon it, by proceeds of the sale, August 22, 1889. But there is no proof that Mr. Orr actually paid $250, or any other sum, for the interest conveyed by the trustee, other than in the form of that credit.
The statement of these considerations has been furnished on several occasions in the various actions which have arisen between the parties interested in this property, including the case at bar.
Upon a close and careful scrutiny of the evidence we are satisfied that plaintiff and Mr. Frederick, the other payee, must have confused or confounded the disposition of the proceeds of the "Wilson loan with the origin of the other mortgage, which was probably drawn with a view to be used to obtain a like loan to that actually made by Wilson & Compány.
Thus, plaintiff testified in 1888, in the case of Toms v. Oaks, that part of the fund he advanced for the benefit of Oaks (in consideration of the Eogers mortgage) was paid to a creditor of Oaks in Shelby county, who held what is called the Shelbina mortgage; whereas the books of the bank at Cameron show that a check for the amount of that claim was paid by that bank from the proceeds of the Wilson loan, deposited at Cameron by Mr. Frederick. This is the largest single item (entering into the Eogers mortgage) of which any specific account is attempted. It amounted to about $600, as plaintiff remembers; or $639.06, according to the check drawn shortly after the Wilson loan reached Mr. Frederick.
Then the latter testified, in the Toms-Oaks case, that part of the consideration of the Eogers mortgage was a payment to Dr. Clagget to relieve the land of a lien or claim the doctor held or represented. But the
The jury, that was called to aid the court, agreed on this point, and found the fact to be as stated by the doctor.
Mr. Frederick also deposed that part of the consideration was money borrowed by him of Dr. Hollington to advance to Oaks; and plaintiff declares that another part was several hundred dollars similarly borrowed by him of Mr. House. Both of these alleged lenders, however, seemed unable to recall those loans.
But it is not our idea to spread upon the record all the particular features of the testimony. It will be enough to give our general conclusions therefrom.
One noteworthy fact in the ease is that Mr. Frederick, one of the payees in the Rogers mortgage note, received -the full proceeds of the Wilson loan, and disbursed the greater part of them in payment of debts of Oaks, and then turned over to Oaks the balance, the exact amount of which is not made clear by the testimony.
Mr. Frederick had agreed with the agent, through whom the Wilson loan was negotiated, to pay off all existing liens with these proceeds. He had personally negotiated for the loan on behalf of Mr. Oaks, who was related to, or connected by marriage with, him.
During the efforts to effect the loan from Wilson & Company, a friendly suit for delinquent taxes was brought against Oaks and other-parties by the collector. At the close of the proceedings in that suit, Mr. Frederick became the purchaser of this land at the tax sale. Those proceedings were intended to clear off some old clouds on the title. Mr. Frederick bought with a view to perfect the title in Oaks. Prior to this tax suit, a skeleton abstract had been prepared by the
Plaintiff also made a suggestion in the letter toward correcting an alleged error in giving the name of Mr. Bissell (one of the outside defendants) in the tax suit.
These tax proceedings were ultimately discarded as worthless by all concerned (after Mr. Frederick had bought the land at the sale), because they had been taken before a justice of the peace. After learning of the ruling of the supreme court (State ex rel.v. Hopkins, 87 Mo. 519) as to the want of power in justices to try general tax eases, no attention seems to have been paid by any of the parties to the tax proceedings, or to the judgment or sale therein. They were treated as void.
But it is noticeable that the 'tax suit was begun, June 28, 1883, and the Rogers mortgage was recorded the next day, June 29, 1883 (though executed during the previous January). The plaintiff’s letter above quoted was written ten days later, July 9, 1883.
If any indebtedness really existed on account of the Rogers mortgage, at the time the proceeds of the Wilson loan were disbursed, it is extraordinary that Mr. Frederick should have turned over any balance of those proceeds to Oaks (whom plaintiff described in one passage of testimony as “a pauper”). By thus giving away the means of payment, Mr. Frederick would have left himself and the plaintiff unpaid.
We believe that when the sale under the Rogers mortgage took place, the note secured thereby did not represent any subsisting indebtedness, so that sale carried no title in equity to the plaintiff, who was fully advised on that subject. Upon this view of the facts, it is immaterial that the Rogers mortgage is prior in legal right (because prior in time) on the record of conveyances.
Mr. House, one of the original payees in the Rogers mortgage note, has disclaimed any and all rights under it. Mr. Frederick is barred of any claim by the earlier proceedings leading to the present action. And plaintiff, the only remaining payee, has not succeeded in giving such definite or satisfactory proof of any solid foundation for the indebtedness, on which his title depends, as to warrant our confirming the finding of the trial court.
On the contrary, after a full review of the evidence, we consider that the trial court as, a court of equity, should have found for the defendants and adjudged a cancellation of the Rogers mortgage and a divestiture of plaintiff’s title derived therefrom.
We have not gone into a full analysis of the testimony or given all the reasons that are furnished by the record for the conclusion reached. We have merely sought to outline in a general way the grounds of our decision.
Rehearing
on rehearing.
A rehearing was granted in order that further consideration might be given to the chief substantial point urged on the motion for rehearing, namely, that the result reached on the first hearing was not sustainable, under the pleadings.
Plaintiff’s contention on that point is that the answer pleads payment of the debt secured by the Rogers deed of trust (under which plaintiff claims); that such pled amounts to a concession of the original indebtedness; and that, hence, the question (treated in the first opinion in banc) as to what indebtedness was actually secured by the Rogers- mortgage is foreign to the merits of the present appeal.
That contention was not lost sight of on the first hearing; but it may perhaps be well to add some observations upon it.
The plaintiff’s petition in the action is a short, statutory form in ejectment.
The answer of defendant Toms admits possession, and then proceeds to set up several equitable defenses. It is very elaborate, covering more than ten pages' of the printed abstract in this court.
In giving a history of the controversy the answer states that: “Plaintiffs base their claim of title to said lands solely and upon no other grounds than by and through a certain deed of trust, dated January 1,1883” * * * “to secure to A. W. Frederick, J. T.
It is then charged “that prior to said pretended sale, to wit, about' January 1, 1884, the said note, in said deed of trust described, had been fully paid and satisfied and said deed of trust ought in good conscience to have been satisfied of record.”
Further along, the answer says that “said deed of trust was no longer a lien upon said premises, and that notice thereof was given to plaintiffs at said pretended sale, * * * by reason whereof defendant says that said deed of trust and pretended sale ought in good conscience to be set aside, canceled, and for naught held.”
In other parts of the answer it is said that the proceeds of the loan effected by the Wilson mortgages were used by Frederick (in accordance with his promise to that effect)' to satisfy all existing liens or claims against the property, and that the lenders were “led to believe, and did believe, that out of said money said Frederick paid and satisfied all liens then outstanding upon said premises, including such sum, if any, as was due upon the note and trust deed under which plaintiffs herein claim.”
Plaintiff filed a reply to the answer; and, at the trial, both parties assumed, by their course of conduct, that a finding upon the plea of payment of the Rogers mortgage involved an inquiry into the amount that was actually due upon that mortgage at the time the sale thereunder was made.
It.is familiar law in Missouri that parties are generally to be held bound on appeal by the positions
Where, for example, there is any fair doubt as to the construction of a pleading, that construction which both parties have given to it at the trial will be taken to be a proper one, unless some rule of law forbids the acceptance of that construction.
The answer charges distinctly that the lien of the Rogers mortgage had been discharged when the sale thereunder occurred. Plaintiff disputed that allegation.
To determine that issue, defendant proceeded, without objection, to show what, if anything, of that indebtedness was due at the time of that sale. The inquiry extended back to the inception of that mortgage. Plaintiff not only made no objection to that inquiry, but, on the contrary, recognized its correctness by giving his own evidence on that identical point. The first question he was asked on the trial in this cause (after stating that he was the plaintiff) was this: “I want you to tell the jury in your own way the origin and the whole history of this debt secured by this deed of trust?” In reply, the plaintiff gave at length his version of the origin of the Rogers mortgage, besides many statements touching matters which led up to that document.
He, as well as the other side, recognized that the issue of indebtedness, at the .time of the sale under that mortgage, embraced the subordinate question as to the-amount of the original obligation. Plaintiff tried the-case on that theory, and we think he was not very wide of the mark in so interpreting the pleadings.
At all events he is in no position to complain now of the admission of the evidence on that question in the trial court or of its discussion in this- court.'
The motion for new trial was disposed of, and the appeal taken, at the April term, 1892, of the De Kalb circuit court. At that term an order was entered of record giving defendant “leave to file bill of exceptions during the next regular term of this court.”
A record entry in the cause, November 23, 1892, declares that, at that time, defendant presented a bill of exceptions which was signed, sealed, and made part of the record.
The closing lines of the bill, after reciting the leave to file it at the November term, 1892, proceed thus: “And now the defendants, within the time allowed by the court, bring this their bill of exceptions,” etc., ending in the usual way, with the date, November 23, 1892, and the authentication by the judge.
The objection advanced is that the record does not clearly show that the bill was filed at the November term, 1892; “for aught that appears, the twenty-third day'of November may have been the continuation of an October term of the court,” as plaintiff’s brief asserts.
If there is any force in the remark just quoted, it goes to prove that the bill was filed in advance of the time it was'due. If on the twenty-third of November the October term was still in progress, the November term must not yet have begun; the bill was, hence, in time.
But the November term of that court in 1892 was, by public law (of which we take judicial notice), .appointed to begin on the second Monday of that month (R. S. 1889, sec. 3390); and the formal entry on the ■court record of the twenty-third of that month indicates