McKenzie v. Donnell

208 Mo. 46 | Mo. | 1907

GANTT, J.

This is an appeal from a judgment of the circuit court of Jackson county for an accounting and to enforce the decree of this court rendered on the 12th of July, 1899, wherein the plaintiffs herein were plaintiffs in error and the defendants herein were appellants in a cross appeal.

The petition sets forth at length the bringing of the bill in equity by the plaintiffs, as the children and heirs at law of Jedediah E. McKenzie, to recover certain lands and set aside a deed of trust thereon and for an accounting on the ground that a certain deed of conveyance, to-wit, a deed of trust made by the said Jedediah McKenzie on March 15, 1875, to Charles H. Vincent, trustee for Patterson Stewart for $3,000, was invalid, because of the insanity of the said Jedediah McKenzie at the date of its execution, and that a certain trustee’s deed, made by the sheriff of Jackson county, under and by virtue of the power of sale contained in said deed of trust, to Catherine E>. Donnell, was invalid for the same reason, and that such proceedings were had that a decree was rendered by the circuit court of Jackson county in favor of plaintiffs on the 15th day of July, 1895, whereby it was adjudged that at the date of the execution of said deed of trust, said Jedediah was insane, and ordered and decreed that the said deed of trust of March 15, 1875, be set aside and for naught held. And that the trustee’s deed by the sheriff as aforesaid to Catherine E. Donnell should also be set aside and for naught held on account of the invalidity of the deed of trust under which said trustee’s deed was made. And that a certain other deed of trust given by the said Catherine E. Donnell and M. S. C. Donnell, her husband, to Oliver H. Dean, as trustee, for Israel B. Mason, of date July 29, 1886, and duly recorded in Jackson county, to secure a note of even date therewith for $15,000', which had been transferred and delivered to the Citizens’ National Bank of Kansas City, should also be set aside, and that a certain other deed of trust by the said Catherine E. Donnell and her husband to James S. Botsford, trustee, for George P. Ballingal, of date October 27, 1892, and for $500, and duly recorded in Jackson county, and which had been transferred to the Citizens’ National Bank of Kansas City, should also be set aside and for naught held. And it was further adjudged and decreed in the said action that the fee simple title to the above-described real estate should be and the same was thereby vested in the children and grandchildren of the said Jedediah McKenzie, the plaintiffs in this suit. It was further ordered and decreed that the defendants, Catherine E. Donnell and M. C. S. Donnell her husband, and the said Citizens’ National Bank, and the trustees in the said deed of trust and all persons claiming by, through or under them should be forever debarred and enjoined from having or claiming any right or title whatsoever to the said real estate adverse to the plaintiffs therein, the children and grandchildren of the said Jedediah McKenzie, and the title to said property was forever quieted in the said heirs. It is also alleged that the said circuit court charged the said Donnells with the rents and use and occupation of said real estate and for certain rock quarried out of said premises by the said Donnells during their occupation of the same, which the court found to be in the aggregate, up to the time of entering* the said judgment, $3,223, and on the other hand the court charged the said real estate with the purchase price paid by the said Donnell therefor, to-wit, $2,105, and also with the taxes thereon sinee the year 1877 up' to the time of said decree, with interest thereon, and with certain attorney fees paid by the said Donnell in resisting the condemnation of a part of said land for Twenty-third street and in resisting a certain other taxbill against said property for the grading of Locust street, in all amounting to $1,250, and for certain repairs thereon, the whole amounting in the aggregate to $11,113.14, and deducted from the said sum the said sum of $3,223 rents and interest thereon and rock quarried up to the time of the entering of the said decree, and found a balance of $7,890.14, and decreed the same as a charge against the plaintiffs on said real estate and ordered and adjudged that the same be paid to the Citizens’ National Bank within twelve months of the rendition of the judgment and to bear six per cent interest. It was ordered, adjudged and decreed that the defendants immediately deliver possession of the said real estate unto the plaintiffs. In default of payment of the said $7,890.14, within the 12 months allowed by the -court, it was decreed that the said real estate should be sold to satisfy the same, and out of the proceeds of said sale the sheriff should first pay the costs and expenses of said sale and no other costs, and next pay to the Citizens’ National Bank the said sum of $7,890.14, with interest thereon at the rate of six per cent per annum from the date of judgment until paid. Provided, however, that if the cost adjudged in said cause against said Catherine and M. S. C. Donnell had not been paid, on execution or voluntarily, at the time of the sale of the said land under said execution, then the amount of the said cost adjudged in said cause should be deducted from the said sum of $7,890.14 and the balance of said sum paid to the Citizens’ National Bank and, thirdly, the balance, if any, of the proceeds of said sale should be paid to the plaintiffs in this case. Plaintiffs were also charged with certain other items of costs, which are not necessary to be noted at this time. The plaintiffs filed a motion to- modify the said decree, which motion the court overruled and the plaintiffs excepted. The defendants also filed motions for new trial and in arrest of judgment and a motion to tax the costs against the plaintiffs, all of which motions the court overruled, and the defendants excepted. The plaintiffs brought their exceptions to this court by writ of error- and the defendants appealed. The circuit court made a further order in the cause whereby it permitted the said Donnells to pay any and all taxes general and special which might be levied or charged on the property in controversy pending their appeal except a certain special taxbill, which was then pending in the Supreme Court, and ordered that they be allowed all such payments as liens upon such property with interest thereon from the time of payments until the decree should be carried into effect if affirmed by the Supreme Court, and further decreed that the said Donnells should be charged with the actual rents of the said premises received by them during said appeal with interest thereon at the rate of six per cent, and for all moneys received by them for rock, if any, quarried by them on the said property during said appeal and until said judgment was affirmed and carried into effect. It is thereupon further alleged that on the 12th day of July, 1899, the Supreme Court of Missouri rendered an opinion in the said cause, which is reported in the 151 Mo. 461 to 472, and affirmed the said decree in all respects except that it disallowed the sum of $375 attorneys’ fees allowed the said Catherine Ei. and M. S. C. Donnell in defending the taxbills then in suit in the Supreme Court, thus leaving the amount with which said lands were to be charged in favor of the Citizens’ National Bank to be $7,515.14. It further appears that the Supreme Court modified the judgment of the circuit court so as to extend the time .to plaintiffs to pay said charge on said land, for ninety days after August 1, 1899. It is then alleged that afterwards, the city of Kansas City, Missouri, by the exercise of its power of eminent domain, took and appropriated for public use, to-wit, for the boulevard and park way known as North G-illham Road, about two-thirds of the said tract of land, leaving a tract uncondemned of the following description: “Beginning at the northwest corner of the southeast quarter of section eight, township forty-nine, range thirty-three, and running1 thence south 440 feet; thence east 196 feet; thence north 4401 feet; thence west 196 feet to the place of beginning.” And plaintiffs state that on the south part of this last-described tract there was at the rendition of said decree a frame house, which still remains on the said premises; that the said house had been rented by the said Donnells for ten dollars per month ever since the said decree; that after the rendition of the opinion in the Supreme Court, the plaintiffs requested the said Donnells to account for the said rent which had accrued since the rendition of the said decree and demanded possession of the same and the said Donnells promised to make an accounting and turn over the possession of said property, but delayed until a short time prior to the April term, 1903, of the circuit court of Jackson county, at which time the plain.tiffs brought an action in ejectment against one Henry Ising, who was then the tenant of the said Donnells residing in said house, and recovered judgment in the circuit court of Jackson county at the April term, 1903, for the recovery of the said house and the south 127 feet of said tract; that said judgment was rendered against the said Ising and the said Catherine Donnell, who had entered her appearance in said suit as a landlord of the said Henry Ising; that before the commencement of the said suit the defendants Donnell refused to account to the plaintiffs for the said rentals contrary to the terms of. the decree and still refuse to account for the same, and that the same amount to $960' with the interest thereon. It is also' alleged that the defendants Donnell also caused a lot of rock to be quarried out of said lands and received payment therefor and appropriated the same to their own use; that plaintiffs do not know the amount of the rock so quarried or the amount of money received therefor by the said Donnells, and prayed for an accounting of the amount of money so received for the said rock so quarried. It is also alleged that the said defendants Donnell have never paid any of the taxes on said land or any part thereof since the date of the said decree and that plaintiffs have paid all the taxes, state, county and city, that have accrued since the year 1877. It is further alleged that prior to the decision of the Supreme Court in the said appeal, Kansas City had commenced said proceedings to condemn a part of said land as above stated, and that said proceeding culminated in an award to plaintiffs as the owners of said land of the sum of $16,150 for the part of the said land so taken and that a benefit of $2,000 was assessed against plaintiffs in said proceedings against the tract of land which was not. taken; that said city afterwards paid plaintiffs for that part of said land, which was taken, and out of the moneys awarded plaintiffs for the taking of said land, plaintiffs paid the Citizens’ National Bank all the moneys which they were required to pay it by the decree of the circuit court and Supreme Court, and had in all other respects complied with the said decree as far as they were concerned. That at the time plaintiffs paid the said Citizens’ National Bank the amount which they were required to pay it by said decree, the said sum of $883.64 had not.been paid by the said Donnells or any one else. Plaintiffs allege further that at the time of the payment by plaintiffs of the amount decreed to the Citizens’ National Bank, a question arose as to the fund which should bear interest under the said decree on account of the failure of the said Donnells to pay the said $883.64, plaintiffs insisting that the said interest bearing fund was $6,631.50 and not $7,515.14, but the said bank fearing that under the said decree it would render itself liable to the said Donnells in case it settled with the McKenzie heirs, the plaintiffs herein, on the basis of permitting the interest bearing fund to' be $6,631.50 instead of $7,515.14, a stipulation was entered into whereby it was agreed that the difference arising between the parties from the different methods of computation aforesaid was $341.29, and that the said amount should be retained by the said bank, and that the bank would at once commence a proceeding to determine the rights of the parties thereto as well as the rights of Catherine E. and M. S. C. Donnell to said sum of $341.29, and the bank agreed that no charge should be. made against the parties or the said fund for counsel fees, save the court cost in said proceeding. It is then alleged that the bank had brought no suit to determine the rights of the parties to said sum of $341.29 in the hands of the said National Bank, and that the same belonged to the plaintiffs. The petition then prayed judgment that the bank pay over said money to plaintiffs and that the defendants Donnell show cause, if any, why the bank should not pay the same to the plaintiffs. There was a prayer then that the court require the said defendants Catherine E. and M. S. C. Donnell to make an accounting of all rents received by them for the house heretofore described since the 15th of July, 1895, up to the 20th of July, 1903, and also for all rock quarried on said land and all moneys received and appropriated by them for the rock so quarried. Plaintiffs further allege in their petition that the defendants Donnell in their answer to the suit which was determined in the Supreme Court, set up and pleaded the Statute of Limitations to defeat plaintiffs’ claim, and that said plea of the Statute of limitations was by said decree adjudged against the said defendants. Plaintiffs further allege that the defendants Donnell are now in contempt of said decree and in defiance thereto are setting up claims to the said lands adverse to plaintiffs and are still receiving and taking to their use all the benefits by way of rents of the said land. It is further alleged that when the plaintiffs brought their action of ejectment against the said Henry Ising, they did not ask for rentals for the reason that their remedy at law was inadequate, because the said Henry Ising was insolvent, and, moreover, had only been in possession of the said property as defined for about one year before the institution of this ejectment suit, and because there was no assurance that the said defendants Catherine E. and M. S. C. Donnell would enter their appearance in said ejectment suit and for the further reason that the obligation of the said defendants Donnell to pay said rentals had been adjudged and decreed by the said decree of the circuit court of Jackson county and affirmed by the Supreme Court, upon which decree the plaintiffs rely, and because the said Donnells had repeatedly promised to account for said rentals and did not refuse to do so until a short time before the institution of said ejectment suit. It is further alleged that the said Donnells are refusing to yield possession of said land and are threatening to appeal from the said judgment in said ejectment' suit. Plaintiffs state that they have no adequate remedy at law for the wrongs perpetrated against them by the said defendants. Wherefore they pray the court to make such orders and issue such writs of possession as to the court seem necessary to fully execute and carry out the foregoing decree of the circuit court as affirmed' by the Supreme Court, and for all other orders and judgments in the premises.

To this petition the Citizens’ National Bank filed its .answer and admitted that the plaintiffs had commenced and prosecuted their suit against the said Donnells and that the decree as set forth in the petition was duly rendered and was affirmed in the Supreme Court. It admits that Kansas City by eminent domain took that portion of the real estate in controversy in said action,' leaving the balance thereof as set forth in plaintiffs’ petition, and that in said proceedings there was awarded to the plaintiffs the sum of $16,-150, and the said lands were charged with a benefit of $2,000. Said defendant bank further admitted that it was paid the amount due it as provided by the. said decree, and that it retained the $341.29', according to the said stipulation referred to in the petition, and admitted that it had not brought suit to determine the ownership of the said $341.29, because of litigation between the said bank and the said Donnells, which was then pending, and alleged that it had made divers attempts to reach an adjustment with the said Donnells, and alleged that it should not be charged with any interest on the said sum as it had been ready at all times and is now willing to pay said sum in accordance with the decree of this or any other court which might lawfully adjudge the ownership thereof, and asks to be protected by the decree of the court.

The defendants Donnell demurred to said petition, which demurrer was overruled, and they thereupon filed their answer, in which they allege that the plaintiffs are not entitled to prosecute this suit against them, first, because it fully appears from the petition that all the matters complained of have been passéd upon and adjudicated by the circuit court of Jackson county and the Supreme Court of Missouri in the suit between the plaintiffs and the defendants in the case which culminated in the decree copied in plaintiffs’ petition, and all matters herein complained of were either fully adjudicated and determined in that suit, or should have been fully determined therein in order that the defendants should not be subjected to a multiplicity of suits growing out of the same matter. Second, because it appears from the face of the petition that the plaintiffs commenced another action in this court to recover possession of a part of the said premises, which was prosecuted to final judgment and appealed to the Supreme Court of this State where it is still pending undetermined, and that the plaintiffs claimed and obtained judgment therein for rents of the premises in question under the decree which was set out in their petition and that the rents so claimed accrued subsequent to the time for which the plaintiffs are claiming rents on said premises and that plaintiffs are estopped from now claiming the other portion of said rents in this' case and are not entitled to split their alleged cause of action and subject defendants to a multiplicity of suits. And defendants plead said prior suit in bar of any recovery herein. Third, defendants say in regard to the differences between the defendant bank and plaintiffs in regard to the sum of money plaintiffs claim said bank in the condemnation proceedings received and retained, these defendants never had any part in the alleged agreement, and not being parties to such agreement are not bound thereby in this proceeding; that the court in which such proceedings of condemnation were had was the proper tribunal to determine how the fund in court should be paid out; that these defendants and all others interested in said funds were parties to said proceedings and said court had full jurisdiction to determine the differences between all parties claiming said fund; that these defendants have never waived their rights to have said court pass upon the rights which they have to said fund, and they say this court has not jurisdiction to hear and determine the same. Fourth, defendants allege that the plaintiffs did not comply with the terms of the decree set forth in their petition and did not within the time required thereby pay to these defendants or to the defendant bank the money required to redeem said land and said time of payment has never been extended by any act or authority of these defendants and plaintiffs did not repay these defendants the amount of taxes and interest thereon, which were paid by defendants after the rendition of said decree as required by the terms of said decree; that the statement in plaintiffs’ petition that defendants had paid no taxes on the property since the judgment was rendered in said decree is not true, and they allege that they have paid large amounts of taxes since that time. Wherefore they say that the plaintiffs are not entitled to prosecute this action and they ask to be discharged with their costs.

‘ The plaintiffs filed a reply wherein they denied all the new matter alleged in the answer and again show to the court that by reason of the condemnation proceedings an agreement was entered into between the plaintiffs and the bank that the said bank should and would take out of the moneys awarded to plaintiffs in said condemnation proceedings, the amount due it by said decree, and would refrain from issuing an execution as allowed by the decree, and allege that under the terms of the decree the plaintiffs were required to deal entirely with the bank in the matter of paying off the restitution money provided for by said decree and plaintiffs did comply with said decree in all respects, and plaintiffs while not admitting that defendants have paid any taxes on said lands since the date of said decree say that if it is true that defendants have paid any such taxes, plaintiffs are willing that the defendants shall have credit therefor as an offset to the rents which defendants have been collecting and appropriating to their own use on the said land since the date of the said decree.

. The cause was heard at the October term, 1904, of the circuit court of Jackson county and a decree rendered that plaintiffs have and recover of and from the defendants Catherine E. and M. S. C. Donnell $482.-85 on account of rent collected and appropriated by said defendants of and from the house and premises described in plaintiffs’ petition, and interest thereon, the said sum being the balance due the plaintiffs after giving the defendants credit for all taxes paid by them on the land described in the petition and all repairs on said house and all other credits to which defendants are entitled, said rents having accrued after the decree which had been rendered by the circuit court and affirmed by the Supreme Court up to the first day of July, 1903. And also that plaintiffs have and recover of the said defendants $262.76, on account of moneys collected by the defendants and appropriated by them for rock quarried by the defendants out of plaintiff’s land described in the petition, together with the interest thereon from the first day of May, 1897, making a total of $382.-97, and it was also ordered and decreed that plaintiffs have and recover the $341.29 referred to in the petition as being in the custody of the Citizens’ National Bank under the stipulation set forth in the petition, and it is further ordered and decreéd that under the decree of the circuit court affirmed by the Supreme Court of Missouri the said Catherine E. and M. S. C. Donnell have no claims to the lands described in the petition and under said decree ought not to set up any claim to the lands or any part thereof adverse to the plaintiffs and that plaintiffs are entitled to the immediate possession of all of the real estate described in the plaintiffs’ petition except that part which was condemned and taken for a public park by Kansas City. It was further ordered, adjudged and decreed that the defendants Catherine E. and M. S. C. Donnell and all persons claiming by, through or under them or either of them, are hereby forever debarred and enjoined from having or claiming to have any title whatsoever to the real estate last above described adverse to the plaintiffs, the children and grandchildren of Jedediah E. McKenzie, or their heirs or assigns, and the title to the said last above-described real estate is forever quieted in the said McKenzie heirs. It is further decreed that the said Catherine Donnell and Mack S. C. Donnell deliver immediately possession of the following real estate in Jackson county described in plaintiffs’ petition: “Beginning at the northwest comer of the southeast quarter of section eight, township forty-nine, range thirty-three, thence running south 440 feet; thence east 196 feet, thence north 440' feet; thence west 196 feet to the place of beginning.” And the writ of possession was awarded to the plaintiffs and against the said defendants Donnell, and judgment for all the costs of the suit. A motion for new trial was filed in due time, heard and overruled, but as no bill of exceptions was filed in the canse it is apparent that there is nothing before this court for consideration save and except the record proper.

I. As to the objection that the judgment is erroneous because there is no finding of facts, we think it is without merit. Special finding of facts are not necessary unless requested and there were no requests in this case. When reference is had to the pleadings in the case, there is no trouble whatever to ascertain what the court found as a basis of its decree.

II. As to the insistence that there is another suit pending for a part of the same subject-matter, which suit had been commenced prior to this, we take it that this assignment of error must refer to the ejectment suit against Ising, the tenant of the Donnells. It is plain, we think, that the ejectment suit against Ising constituted no bar whatever for the bill in this case which calls for an accounting for the rents in accordance with the decree of the circuit court, which was affirmed by this court in 151 Mo. 431 to 472. It was specifically alleged in the petition that plaintiffs did not sue for the rents in the Ising case because those rents had been adjudged to the plaintiffs as against these defendants, and defendants required to enter into an accounting with the plaintiffs therefor, and for the further reason that the said Ising was absolutely insolvent and hence the action of ejectment afforded plaintiffs no> adequate remedy at law for those rents. In no sense could the judgment in the ejectment suit be regarded under all the facts pleaded in the petition as a bar to the plaintiffs’ right to an accounting for the rents by the defendants in accordance with the decree of the circuit court and this court. In order that any matter can be said to have passed in rem judicatam it must have been tried and adjudicated by the court; it is clear that no such issue was tendered to the circuit court in the ejectment case and consequently could not have been adjudicated by that court in that case. Moreover, defendants are in error as to the allegation of the petition. The petition does not allege that there is an appeal pending from the judgment in the ejectment case; it simply alleges that the defendants threatened an appeal, which is a very different proposition. The ejectment suit and the judgment therein present no bar to this suit, and besides in no event could plaintiffs have recovered from Ising the rents and profits for more than a year during which Ising occupied the premises as the tenant of the defendants.

Under this head, we take it there is no contention that so much of this suit as seeks an accounting of and from defendants Donnell for the rents receivedhy them pending their appeal to this court from the judgment of the circuit court of July 15,1895, which was affirmed by this court July 12,1899, and for the rock taken from the quarry on said land after said appeal was taken and before it was affirmed,-was and is res judicata, inasmuch as in the very nature of things said rents had not then accrued and said rock quarried, and therefore could not have been the subject of an accounting, or ascertained so that a judgment could have been rendered therefor. Only the rents accrued and the value of the rock quarried up> to the 'date of that judgment ceuld be and were included in that judgment, and had defendants not appealed and superseded that decree, so much of the present suit as seeks an accounting for the rents subsequent to that decree and the rock quarried since then would have no foundation. In Garland v. Smith, 164 Mo. l. c. 22, it was ruled by this court in Banc that, “Where the subsequent action is upon a different claim, the former judgment only bars those things which were in issue or included in the issue in the former action or suit, nor will the judgment bar another cause which might have been joined with the former cause of action but was not, and if different proofs are required to sustain two actions, the judgment in one is no bar to the other. ’ ’ [Cromwell v. County of Sac, 94 U. S. 351.]

But the defendants insist plaintiffs have split up their action and upon the familiar doctrine that this will not be tolerated they say plaintiffs upon their own petition have no standing in court. As we have already said, plaintiffs included in their first action all the rents and damages which had accrued up to the date of the judgment, but they did not and could not include rents which must accrue after the decree was entered and pending the appeal. This was no splitting up of a cause of action. It is a suit to enforce the first decree and for an accounting for the rents and rock quarried subsequent to the decree and while the decree was superseded by defendants ’ appeal bond. [Adams ’ Equity (8 Ed.), mar. p. 415 and- 416; Story’s Eq. PL, sec. 429, and cases cited; O’Hara v. Shepherd, 3 Md. Ch. 306.]

As was said by this court in Baumhoff v. Railroad, 205 Mo. l. c. 262, “the present proceeding is in the nature of an equitable execution issued on the judgment, already determining plaintiff’s right.” Plaintiffs had obtained a decree quieting their title to the lands in suit and the circuit court had stated and settled an account up to the date of the decree, including rents and rock quarried to that date, but' defendants appealed and gave bond and remained in possession. Obviously plaintiffs recovered nothing for these subsequent rents and' for the rock afterwards quarried. When plaintiffs asked for an accounting as to these and for possession of their lands they were met by defendants Donnells ’ refusal to account, and claim that plaintiffs had forfeited all the benefits of their decree by their failure to pay the balance which the court had decreed as a lien on the land to the bank in the time fixed by this court. The contention of defendants that plaintiffs show no equity in their bill because they did not pay the bank the amount fixed in the decree can avail them nothing, because the revesting of the title to their lands in plaintiffs was absolute and not conditional upon their raising the balance. The bank was simply given the right to issue an execution if not paid in the time specified, and defendants had nothing to do with that payment. By the decree plaintiffs were required to satisfy the hank and not the defendants Donnell. In their present suit they show they have entirely liquidated every claim held by the bank. The doctrine of strict foreclosure has nothing to do with the matter.

The decree finds ample basis in the pleadings and the bill brings the case within the jurisdiction of a court of chancery. The decree of the circuit court is in all things affirmed.

Fox, P. J., and Burgess, J., concur.