120 Mo. App. 519 | Mo. Ct. App. | 1906
(after stating the facts).
In State ex rel. v. Wood, 155 Mo. l. c. 446, 56 S. W. 474, the court said: “It would seem to be elementary that in legal parlance cloud upon title arises with reference to real estate only. [6 Am. & Eng. Ency. Law (2 Ed.), 150 and cased cited.] This is the settled law of this State. [Lockwood v. St. Louis, 24 Mo. 20; Leslie v. St. Louis, 47 Mo. 474; Warrensburg v. Miller, 77 Mo. 56; Sayre v. Thompkins, 23 Mo. 443; Bank v. Kansas City, 73 Mo. 555.]” There are exceptions to- this elementary rule of equity practice; for instance, to remove a cloud upon attached property in the hands of a sheriff, when the cloud is created by a recorded mortgage. [Voss v. Murray, 50 Ohio St. 19.] Assignees of property, which they desire to sell, may remove a cloud upon it, created by a recorded mortgage, which they claim to be invalid. [Sherman v. Fitch, 98 Mass. 59.] In the latter case, the court said: “The mortgage is upon record, and it is
“1st. That said count is a departure from the cause of action pleaded in the original petition herein; and
“2nd. That the pretended cause of action set forth in said second count accrued after the commencement of this suit on September 17, 1904, in that the alleged conversion by defendants of the articles in said count described took place long thereafter, when the lease under which the plaintiff claims had expired, December 31, 1904.”
It is permissible, under our code of practice, to bring forward, by an amended or supplemental petition, matters that have occurred since the commencement of the suit, where they simply enlarge the relief prayed for (Ward v. Davidson, 89 Mo. 445) and so, a petition may be amended to correspond to changes which have occurred since the commencement of the suit. [Reyburn v. Mitchell, 106 Mo. 365, 16 S. W. 592; Cohn v. Souders, 175 Mo. 455, 75 S. W. 413.] But a new and different
The motion to strike out the second count was properly sustained and the judgment is affirmed.