79 Mo. 382 | Mo. | 1883
This is a bill in equity. The petition states that plaintiffs are husband and wife; that the wife contracted with the defendant Kenton, to the effect that, as her agent and trustee, he would purchase certain described real estate in the town of Norborne, in Carroll county; that she furnished the money, and the title was to be taken in the name of the defendant, and immediately thereafter he should convey to her; that the money was accordingly furnished, the purchase made by defendant and the title conveyed to him by the vendor. The petition then averred that soon after said purchase the plaintiff', with the consent of defendant, entered into the possession and enjoyment of the premises, and had ever since so held the same, making large and lasting improvements thereon, such as erecting a
The bill of exceptions recites that: “ The plaintiffs, to sustain the issues on their part, offered evidence tending to prove the facts set forth in the petition. The defendant, to sustain the issues upon his part, offered evidence to sustain the allegations pleaded in his said answer. This was all the evidence offered.”
Upon this state of the case the court rendered the following decree:
“ Now at this day come the parties, by attorneys and in person, and each party being ready for trial on the pleadings, and the court, after hearing the testimony for plaintiffs and defendant, and the argument of counsel, finds the facts to be as follows : That on or about the 17th day of January, 1876, the defendant, under and by virtue of a verbal contract, entered into between him and the plaintiff Margaret P. Newham, purchased of one M. C. Huff' and wife the real estate described in the petition for and on account of the plaintiff' at and for the sum of $230 ; that by the contract and agreement between the said M. P. New-ham and defendant, the deed to said real estate was made to defendant as trustee for the plaintiff’, and that said deed has been duly made and recorded in Carroll county, but that said deed does not express said trust; that shortly after said purchase as aforesaid, a further contract and agreement was made and entered into between plaintiff M. P. Newham and the defendant to this effect: That plaintiff' M. P. Newham and the defendant would erect and build a two story frame storehouse, of the kind and-character mentioned
Erom this decree, after an ineffectual motion for a new trjal and in arrest, the defendant has appealed. The question to be decided is, as to the propriety and right of this decree.
It was ever the rule in equity to set out with particu
The rule that under the general prayer for relief a party may have any relief to which he may show himself entitled, is limited to relief founded on and consistent with the facts set out in the bill, and not such as may be proven at the hearing. McNair v. Biddle, 8 Mo. 257; Wilkin v. Wilkin, 1 John. Ch. 111. So Napton, J., in Mead v. Knox, 12 Mo. 287, said : “ It is not denied that a court may grant, under the prayer for general relief, a relief different from the specific relief sought; hut the decree must be warranted by the allegations and proofs. The testimony of Mead (the witness) put a new face upon the transaction — and if there was a fraudulent combination between him and the defendant, it was proper that the bill should be modified to suit this altered state of things, but this was-not asked, and the least which the court could do was to dismiss the bill without prejudice.” In Duncan v. Fisher, 18 Mo. 404, Gamble, J., aptly said: “ The change made in our practice does not relieve the parties from the necessity of establishing by evidence the case made in their respective pleadings, or authorize a verdict on evidence which shows a different right of recovery.” In Irwin v. Chiles, 28 Mo. 576, 578, Richardson, J., declared that “a party is not entitled to a judgment on a finding of facts different from any theory of the case set up in the petition or answer.” In Harris v. Rail
Now, what was the issue tendered by the petition and answer in the case at bar? It was simply and singly whether the plaintiff' furnished the purchase money for the lot in question under the arrangement alleged, that defendant should receive the title in trust, and whether he had violated his obligation in that respect to convey to plaintiff. The evidence offered, so recites the bill of exceptions, tended to maintain the issues respectively made. And yet on this state of the pleadings and proofs the court made the decree herein quoted. The decree is based on a new and supplemental contract not embraced nor in the remotest degree referred to in the petition. Such a decree cannot be defended either on authority or principle. In principle it is little, if at all, distinguishable from White v. Rush, 58 Mo. 105, which was an action of ejectment. The answer put in issue the validity of the title under which plaintiff claimed, because there was no notice of the sale under the deed of trust through which the title came. Issue was taken on this new matter. The court was not content with finding the issues for defendant, but went further and adjusted the equities between the parties touching taxes, etc., which had accrued on the land, and rendered judgment for. them. This court held there was nothing in the pleadings justifying the judgment, and it was, therefore, error.
How the evidence, on which the decree under review purports to be based, got before the court, is not apparent. It was not competent under the general denial for the defendant to introduce it. It was not an issue within the
Respondents’ counsel suggest that the appellant ought not to complain of the error, as under the decree he obtains a half interest in the lot and improvements. But the court, whilst leaving in him an undivided interest in the property, went further, and rendered a judgment in personam against him for $339. In other words, under a petition to impress the legal title to this property in defendant with a trust and to divest the legal title and vest it in the cestui que trust, the court, against his prayer and will, decreed that defendant have half the title, but required him to pay plaintiff a money consideration therefor recoverable from his estate generally. This is a marked exhibition of the expansive powers of a court of equity; ánd I fear would be a dangerous precedent to establish. It would certainly be a case of “ first impression,” which would evince some unjudicial temerity to venture.
The judgment of the circuit court is reversed and the cause is remanded.