Jones v. Moore, 42 Mo. 413

Jones v. Moore

42 Mo. 413 | Mo. | 1868

Holmes, Judge,

delivered tbe opinion of the court.

This was a suit upon promissory notes, by tbe holders against tbe makers, upon a petition in tbe usual form. Tbe answer of tbe defendants admitted tbe execution of tbe notes, and set up equitable matters as a defense. Tbe cause was beard before a court, a jury being waived. Tbe issues were found for tbe plaintiff and tbe damages assessed, and judgment was given for tbe plaintiff for tbe amount, with a further judgment that ££ tbe defendants take nothing by their counter claim.” In tbe answer tbe defense set up was a counter claim, which, besides tbe equitablo relief prayed for, asked for a recoupment of damages.

Tbe statute provides that tbe answer may consist of a statement of any new matter constituting a defense or counter claim. It may contain ‘£ as many defenses or counter claims as tbe party may have,” whether legal or equitable, or both, and they must be separately stated. A counter claim must be a demand existing in favor of tbe defendant and against tbe plaintiff, between whom a several judgment might be bad in tbe action, and it must arise out of tbe same contract or transaction and be founded on con*419tract. It is evident from this that a counter claim must be of the nature of a cause of action at lav. Different defenses or counter claims may be separately stated in the same answer; but equitable matter—that is, an equity for relief—can constitute a defense only, but not properly a counter claim. Equity may afford relief in some cases by decreeing the payment of money or a compensation by way of damages, and in some very special cases may perhaps direct an assessment of damages, but the jurisdiction must be founded upon some equity. That equity may be a defense to the cause of action at law, or it may not. If it be'not a defense, it cannot be joined in the same suit. A cause of action which wholly defeats the demand of the plaintiff cannot be a counter claim. (Hobson v. Pierce, 12 N. Y. 156; Post v. Sprague, 12 How. Prac. 455; 1 Smith & Tiff. Prac. 378.) These authorities do not support the idea that an equitable defense may properly be called-a counter claim. A defense may be either legal or equitable, and different consistent defenses may be separately stated in the same answer. (Gen. Stat. 1865, ch. 165, §§ 12-14.)

This answer contained an equitable defense, but not a counter claim. A recoupment or set-off is not of the nature of a defense or plea in bar, but admits the cause of action and claims an allowance in diminution of the plaintiff’s demand, and it is not a counter claim. The effect of the judgment that was rendered may be taken to have been that the defense on the equity was adjudged against the defendants as upon the dismissal of a bill.

It has been held by this court that where a matter of equitf and an action at law are separately stated in the same petition or answer, the matter of equity and the matter of law must necessarily be separately tried or heard, for the reason that there is a constitutional right of trial by jury in the one case and not in the .other, and the nature of the judgment or relief given must in general be very different. (Peyton v. Rose, 41 Mo. 261.) The statute recognizes this difference in the mode of trial. (Gen. Stat. 1865, ch. 169, § 18.) Here the parties appear to have consented that both matters might be heard together, and the right of trial by jury was waived. No exception is taken to this action of the court.

*420The equitable defense consisted in an allegation of fraud and unfairness at the sale of the property upon which the notes sued bn had been secured by deed of trust, the plaintiff having been the purchaser, and the relief prayed for was that the trustee’s deed to the purchaser might be declared void, and the defendants allowed to redeem the property upon payment of the whole debt and interest (these notes inclusive), and that an account might be stated and an injunction granted to stay further proceedings at law. It is apparent that if this relief could have been granted it would have constituted a complete defense to the plaintiff’s cause of action. One objection to the sale was founded upon an alleged insufficiency in the publication of notice. It appeared that the original deed of trust required that the property should be advertised for sale “ in some newspaper printed in St. Louis or Franklin county,” and that the notice was published in the “Franklin County News,” a newspaper published in Franklin county. The certified copy of the record of this deed, from the recorder’s office of the county, made it appear that the deed read “ in St. Louis Franklin county.” In the case of Jones v. Thornburgh, 36 Mo. 514, the allegation of the petition upon which the case was decided on demurrer made it read “ in St. Louis and Franklin county.” In this case it appears that the notice was published as required by the deed. The parties to the instrument must be held bound by the true reading. All parties concerned in the matter of the sale appear to have had actual notice, and for all the purposes of this case the notice will be deemed to have been sufficient.

The evidence failed to support the averment of fraud and unfairness at the sale. It does not appear that the beneficiary and purchaser did'anything more than he had a lawful and just right to do. His demand that the sale should be made for cash, payable in coin rather than in currency at a discount, was in conformity with the terms of the deed and with the requirements of law. This alone would furnish no ground for relief. (Goode v. Comfort, 39 Mo. 326.) The proof does not show that this demand was made oppressively for the purpose of deterring bidders, nor that any persons were prevented from bidding, nor that the property was obtained for much less than its real value at that *421time. The parties interested in preventing a sacrifice of the property were present and had a full opportunity of bidding, and their bids to the amount they were willing to go were accepted, and they were informed by the trustee that a reasonable time would be allowed for an examination of the title, the execution of the deed, and the payment of the money. They might have prevented a sale altogether by paying the debt due. Even after the sale had taken place, the plaintiff offered to give up his purchase upon receiving full payment of his debt. The disturbed condition of the times was not such as to furnish any valid excuse for the delinquency of the defendants in the payment of the notes. We do not see that the facts and circumstances proved amounted to any fraud or unfairness that could furnish a sufficient ground for relief.

The judgment will be affirmed.

The other judges concur.