Johnson v. Stephens

107 Mo. App. 629 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — The evidence of plaintiff shows conclusively that the defendant did not enter into a personal obligation to pay him any sum of money whatever. The understanding was that defendant should pay plaintiff any surplus that might remain from the sale of the livery barn, thereafter to be made, after deducting the debt and interest due defendant and taxes dne and to become dne that he might pay.

Johnson’s evidence shows that, notwithstanding he made an unconditional conveyance of the livery barn to the defendant, he retained an equity therein. This equity was the right of Johnson to call on defendant to account for the proceeds of the sale of the property, whenever made, and if there was a surplus, after deducting what would reimburse himself, to require defendant to pay over such surplus to plaintiff. This-surplus would represent Johnson’s equity in the property, and though the complaint states a cause of action at law the instruction given for plaintiff (quoted below) submitted to the jury purely equitable issues and was based upon plaintiff’s evidence:

‘.‘The court instructs the jury that if you believe and find from the greater weight of the evidence that plaintiff and defendant at the date of the execution of the deed, to-wit, June 8, 1900, entered into an agreement by which-defendant was to have the possession of the livery stable named in the petition, and that the stable was to be sold and the plaintiff paid the balance after defendant was paid his money and interest, you are instructed that defendant became and was a mortgagee in possession of the property, then as such he would properly be charged with the reasonable value of the rents and profits of said premises during the time he so held possession thereof. Then you will find the amount of the note at the date of the sale, to-wit, October 10, 1901, the amount of taxes paid by defendant, also the amount of insurance paid by defendant. From the amount of the note at date of sale and the insurance and taxes you will deduct the rents and profits you may so find to be reasonable under the evidence in this case and this amount you will deduct from one thousand dollars and this remainder, if any, you will find for the plaintiff.’’ ’

Jurisdiction of equitable actions is denied to justices of the peace. Section 3837, R. S. 1899; Miller v. Ins. Co., 68 Mo. App. 19; Sandige v. Hill, 70 Mo. App. 71. The only jurisdiction acquired by the circuit court, on appeal from a justice’s court, over the subject-matter of a suit is the jurisdiction which, the law confers upon the justice. If, therefore, the justice had no jurisdiction, the circuit court acquired none by the appeal to try the cause as an equitable one. Miller v. Ins. Co., supra; Seeser v. Southwick, 66 Mo. App. l. c. 667.

The complaint states an action at law, and the evidence of plaintiff supported the complaint. But if the suit is to be tried as one at law there can be no accounting for rents, etc., and the plaintiff must recover, if at all, upon the promise of the defendant to pay him the sum he sold' the premises for in excess of his debt and-interest due from Johnson at the date of the conveyance from Johnson to defendant plus all the taxes paid by defendant on the premises.

Judgment reversed and the cause remanded.

Bey-burn and Goode, JJ., concur.