*1 сarefully cited each of cases We have examined and considered radically are the facts in their facts so different from and find that regard authority way bar that we do one case at them as or question judg- In our the other at issue in instant case. (cid:127) apparent inapplicability ment of these cases is that no use- the- so ful would purpose served discussion them. We extended any opinion may have cited these cases in order that reader by comparison right determine whether or not we have reached the conclusion as to the applicability of the cases. cited
For stated, judgment our reasons case was not under final submission at the time he dismissed it. The vol- untary dismissal appeal the case not reviewable either writ of error. For that reason writ our of error issued heretofore ' quashed. should be is so It ordered.
All concur. Percy Dwight John A. Robinson C. Field Appel Roberts, lants. 117 W. S. 308. One, May Division 1938.* Term, 1938; Opinion September April 1, at mo- *NOTE: filed Term, 1938, rehearing filed; May May motion overruled at tion 1938. *2 Edgar J. S. Piatt appellants. W. S. Keating
.781 *4 Cross, & Cross Clevenger Hull <& Harry respond- A. Hall ent. n
HYDE, recently ease, reassigned writer, C. This to the com (conveying farm action have deed land Clinton menced County) void” “declared because it “was without' consideration.”’ (As petition.) “F” paragraph Aft stated petition' (which defendants er and second amended- an amended the court entered departures), ordering claim decree defend proper and deliver a ants “to execute lands to relief. granting ap other Defendants plaintiff;” and also decree. pealed from filed in June, first
Plaintiff’s 1933. *5 involving farm land other was also in filed Platte A similar Term, September At time. at same defendants denial, general was a and a motion for answer, judg- filed an pleadings. court, never ruled This motion was ment plaintiff filed amended In the December, in but - plaintiff equity against in had filed- suit meantime, defendants County seeking in (August, 1933) Jackson establish defendants’ attorneys’ alleged to be rea- plaintiff, for fees due them from claim $35,000. sonably petition, In their defend- Jackson worth Platte were con- alleged the Clinton and farms ants attorneys’ veyed in $8000 to them in consideration of the sum fees they reconvey them from offered to these farms due plaintiff; $8000 and interest less income received. Dеfendants sought impound plaintiff also certain assets held suit City security Company City & Kansas Bank Trust as a plaintiff, appointed it had to. loan made to to have receiver take have; charge property of these and other de- plaintiff, assets thereon, proceeds fendants’ declared a lien fees to have the applied derived therefrom to the of defendants’ fees.
The material in Decem- parts filed ber, 1934, were as follows:
(A) employed- “Plaintiff states he the terms (that he,- Field, compensation defendant would leave matter of entirely up plaintiff to the at sum plaintiff might whatever be will- ing pay) pursuant agreement rep- to said the defendants plaintiff resented the as his and as attorneys, such counseled and matters, regard legal him in to his advised business attorneys continued to act his from said until date after May 1931.
(B) grossly “Plaintiff states that time during said misrepresented litigation and claims which they were representing would lead to almost certain him arrest charges conviction under serious criminal servitude penitentiary, judgments large sums, in addition to which would completely deprive him all his real estate and personal property, together with the right practice physician. loss his
(C) convey also “Defendants advised him that he his should estate them so position real would be in a to make bonds, in cost, appeal, and other pending litiga- the threatened and tion. advised Defendants also that he deed should said security attorneys’ real estate to them as and for for their fees. relying upon Plaintiff states that the truth of said representations and convey advice and counsel of the said defendants he did in fact 11, 1931, May
to the said defendants oh the following de- property: (describing land) together scribed with additional real County, Missouri; pursuant estate Platte to their advice he the deeds, showing made the consideration to be for fees due the defendants.
(D) representations “Plaintiff states were false and *6 intentionally defendants by tbe fraudulently and and made
untrue inducing him to and deceiving plaintiff express purpose for money pay large them sums them real estate to and convey his well knew. the defendants fees, all of which for and a reasonable has defendants that he (E) “Plaintiff states reconvey they said thаt and has demanded for services fee their re- and refused to defendants have failed him, but property to their demand eonvey plaintiff unless he meets property attorneys’ fees. of additional property (F) that “Plaintiff states any do not have without consideration or to said legal right, title, claim interest land. equitable “Wherefore, prays plaintiff deed the court to cancel said void, same and for such other and further hold that the is null just.” (We designated may each relief paragraph purposes letter for with the comparison second filed.) amended later petition filed motions to strike this amended on the
Defendants departure ground original petition. that it was a from the In Oc- tober, 1935, judge Circuit Court of Clinton madе restraining a vacation order proceeding from the suit County. filed plaintiff them Jackson Prior to that had un- successfully sought prohibition against the Jackson court. ex Wright rel. (Mo.), Robinson 85 S. W. At [State 561.] January Term, 1936, defendants’ motions to dismiss de- parture were overruled. Defendants had also filed motion to dis- ground miss on the did not state sufficient facts to cause constitute a of action and ground on the plain- further appear give tiff had refused to deposition. his This motion was also overruled. Defendants had a term exceptions bill allowed showing these motions the action of the court thereon at the January Term, April At 1936. Term, 1936, at which all further proceedings herein had, involved were defendants filed separate pleas in abatеment in stated appeared special- ly question jurisdiction to raise the ground plain- original petition tiff’s nullity; was a plaintiff was not and never had been County; a resident of Clinton that defendants were not and never had been residents of Clinton not sub- ject to an aetion therein “to ascertain fix the value of defend- attorneys ants’ services as and to reclaim and recover from them overpayment a claimed plea fees.” This also stated that defendants’ action pending against in Jackson County prior to filing of plaintiff’s amended petition, and set plaintiff’s up attempt unsuccessful prohibition to obtain in this pleas court. These in abatement were overruled, and defendants jurisdiction raising question filed demurrers then Thеse demurrers were plaintiff’s petition. insufficiency amended during plead, were then time to Defendants also overruled. they thereafter 1936, term, and adjournment April, of the recess *7 separate answer filed jurisdiction both of question of raised the
These answers also subject contained a counter- but each person matter; of and County in in Jackson upon stated the suit based the same facts claim relief: affirmative sought following by allowed be established and “That the fees defendant $35,000; Eobinson elect to in should said court the sum accept re- re-conveyed net income have said farms to him and by accounting of this defendant in accordance with a strict ceived date, pay monies received and to these distributed aforesaid, defend- said reasonable sums for fees as these due them equitable dis- pray judgment for as will effect ants such said sums election, pray judgment for in- and these defendants tribution sums, adjustment resulting from from terest on said said May 1931, Eobin- 11, judgment; date to date of and should said keep son elect to this defendant and his co-defendant said $8,000 aforesaid, pray paid farms on account of these judgment $27,000, $3,600 in sum less heretofore a credit fees, $23,390.95, judgment account of said a net leaving plus the be taxes to such as he grantor and for has sums farms; since taken from said from that said sum should bear interest date of annum; injunction June 8, at the 1934, per rate 6% Dwight heretofore issued Percy this court C. case Field Eoberts vs. John City & A. Eobinson and National Bank Trust Com- pany be dissolved and held for and such other further naught, may judgments as appear just proper.” to this to court regard In to farms, plaintiff sought defend- recover, which ants’ (and answers conveyed stated that two farms were them accepted) partial (the so payment on account of fees being $3,500.00,” farm payment taken “as payment $4,500.00;” farm “as but Platte “willing equity every respect herein in were do this court tender back Eobinson said deeds said land and offer make accounting for all collected from income land said Eobinson’s to this defendant consid- and said Eoberts the $8,000* May deeds, to-wit, eration of said and interest thereon since presented (which 11,1931.” Defendants a motion over- also the court 1936, term) enjоin April, seeking prose- ruled at from County case. This motion Platte stated that the Platte cuting his “grew part subject of and of the same matter County case out 786 trans- action,”
and transactions as this the same also actions the Jackson case. involved nullity original Defendants petition contend that was a ’ first amended; could not be that defendants motion strike sustained; petition pleas should have been that defendants’ against petition abatement been the first amended should have sustained; pleadings judgment defendants’ motion for on the filed) sus (after should have been first amended restraining against tained; defendants’ Jackson Coun order ty nullity; pre suit was that all of been these matters have original exceptions. Clearly for rеview term bills of served facts of action not state sufficient to constitute a cause did aside, against . . parties, because-“as . deed set to have the question voluntary purely of consideration is immaterial and a 35; 162, valid.” R. C. L. sec. C. J. sec. [8 ; 86 42; Chambers, Chambers v. S. W. Clark v. 1094; see, Franklin Skinner, also, 334 Mo. 70 S. W. Moss these eases hold (Mo.), 101 that S. W. ‘‘ consideration (2d) 711, and cases expressed cited.] in deeds is [2] *8 However, open to alleged that explanation by parol evidence,” petition and this de “in truth in fact” to the land. It was fendants and had-no title alleged it conclusions of facts. Further defective because instead rights facts, concerning described, transaction could in the the show defendants, conveyed which would disclose that beсause the land of the not purpose deed, actual consideration and were absolute in setting owners fee to re- and which would warrant the deed aside grantor. vest the title in were the first the Such facts in stated petition, namely: that amended so the made position appeal cost, defendants in a to make other “would be and security fees;” bonds . . . and for for their misrepresentations them defendants made fraudulent to obtain litigation concerning in the character of which he was the involved; plaintiff “has reasonable for defendants a fee services;” (at litigation by intendment) their and least the was over defendants’ services had ended. The and amended validity originally attacks the of the same transaсtion described still against properly court seeks same relief We and it. hold Hinderks, in under rules stated Jensen the amendment v. allowed Lee St. Louis Service 92 S. W. and Public 338 Mo. (2d) 337, therein 1169, 88 S. W. and cases cited. There 337 Mo. Co., against correctly the several directed ruled motions the court fore, the first amended concerning restraining against order de
Any question became immaterial when County suit defendants Jackson fendants’ the Clinton lap County into Court matter the whole tossed they sought counterclaim, by which answers and their adjudicate between phase all transactions them every court latter Court plaintiff. When defendants thus the Circuit invoked County try controversy grant Clinton whole them out sought relief in Jackson affirmative had same Bank City which was (еxcept to the Kansas not a equity suit thereof, in began participate permitted the trial party), and regard to Platte transaction without ob- evidence in jurisdiction subject jection, questions person matter all case; no way of the also waived and went out there were put dismissing them their for defendants to back afterwards McMahon, Mertens v. counterclaim or otherwise. The case of defendants, them (2d) 127, help not S. W. cited does questions situation, keeping jurisdictional alive in this be- toward no relief of cause no counterclaim was filed affirmative there against any sought. authority direct defend- kind was That ease is course, because this court there said: “Of such ants’ contention question (seeking jurisdiction) alive must keep defendant showing any willing that he affirmative take action the case jury trial of to the court to submit the whole case before pending . . . must it is not seek affirmative relief that, filing when the part his such as a counterclaim.” We hold began plain- April trial Term of the Court on counterclaim, first defendants’ that court tiff’s jurisdiction by request complete defendants own obtained had attorneys’ fees try concerning relief all issues such affirmative defendants, fix the total between amount rendered, entitled be all to determine services possession disposition property what should made of security notes) (whether for the land or held as *9 attorneys’ fees. of their commenced, petition on first and
This trial was amended Term, the April 1936, rеconvened counterclaim, on when defendants’ April 28th. own behalf and cross- on Plaintiff testified his the 29th. court on day His examination took of the examined. day, following on the filed a second When court convened to dismiss petition. Defendants filed strike and motions to amended These were overruled. Defendants departure. ground on of the their Thereafter dismissed counterclaim. de- and then withdrew rehearing of to to their motions strike and filed motions for fendants Thereupon also overruled. “defendants which were refused dismiss withdrew from the court room and the court to further and plead ’’ hearing the evidence. the further of proceeded conduct repeated paragraph amended “A” of second Plaintiff’s pаragraph “B” It also restated thereof ex- amended the merely cept misrepresented” that it and left out “grossly the words the stated represented stated that matters plaintiff” “defendants the petition, In paragraph therein. lieu of “C” of the amended alleged: second convey him that his real es-
“Defendants also he should advised cost, position appeal, make be in tate them so would litigation. Defend- pending and other the bonds threatened and estate plaintiff that he said real ants further should deed advised attorneys expenses, security them as their fees and and litigation reconvey property over. would when said relying upon representa- “Plaintiff truth of states said advice he did con- defendants, tions аnd the counsel of said and vey May 1931, being real on real his estate to the defendants Missouri, conveyed by County, in Clinton and deed estate described follows: as day 11th Warranty indenture,
“Missouri Deed. made This Thirty-One May, of A. D., One Thousand Nine Hundred and Missouri, County Clay, John of State of between A. Robinson of party Dwight of of C. Field and Roberts part, Percy the first Missouri, part, Jackson, parties of of of the second State part,
“Witnesseth: That first consideration party the said of the ($3500.00) paid Hundred Dollars him Thirty of sum of Five parties receipt hereby ac- (the of which part said of the second Convey Bargain Sell, knowledged), presents, Grant, do these part, heirs and Confirm parties unto the of the second their said following parcels lying, being assigns, lots, tracts or of land Missouri, (de- to-wit: Clinton, situate in of State of land). scribing ‘‘ Thir- grantees This named deed above them money due ty-five ($3500.00) Hundred Dollars on account All taxes which can now are to be fees. grantor. by the named above ‘‘ hold .... To ‘‘ conveyed estate to the defendants other real That on date he said Missouri, conveyed by fol- deed as County, described and in Platte lows: indenture, day made on 11th Warranty Deed. This
“Missouri thirty-one by nine hundred May, D. thousand A. one Clay, Missouri, of the State Robinson John A. between Dwight Percy Roberts, C. Field and part, of the first party Missouri, parties part. Jackson, State the second County party part, first consideration “Witnesseth, ($4500.00) to him paid *10 Hundred Dollars Forty Five the sum receipt part (the of which is hereby second ac- the parties by said grant, bargain convey presents, sell, these and knowledged), do and confirm the parties unto heirs and part, of the their second assigns, following the lying, lots, parcels described tracts land being in County Platte, situate the Missouri, and State of to-wit: land). (describing
“This grantees deed is to the above named Forty-five ($4500.00) money Hundred Dollars on account of due them attorneys” fees. All taxes which can be now are to be grantor. named above
“To have hold, and to etc.” “ “ ” ” The then petition paragraphs second amended D, B, restated “F” of the petition following and amended and ended with the prayer:
“Wherefore, plaintiff prays the court to con- cancel said deeds veying the lands in Platte and Clinton Counties and hold the same be null void and and the that court order and direct the defendants reconvey plaintiff the to this lands Platte Clinton Counties aforesaid and for such other further may relief as just.”
Defendants petition contend that this second amended was a departure from the first it that was error overrule their ground. motions strike and to dismiss on De say original fendants suit was an action in rem to cancel1 land, to Clinton County subject deed was, the un matter Section der jurisdiction Revised within Statutes County Court; Clinton but at the second amended tempted bring subject namely, matter jurisdiction, within its land; County change Platte attempted it further nature of personam case from an action in action rem to an accounting attorneys’ “for an expenditures for services lia еnforce) bilities for (to agreement eourt reeonvey costs an pledged costs, surrender securities fees services litigation claim attorneys’ paid.” terminated and fees What making defendants overlook in this contention is their they, by counterclaim, already per had the case into converted an action sonam, “for accounting they services” for which sought personal judgment against plaintiff, proceeding and were try such a case before filed his second amended Furthermore, by brought they their counterclaim in the Platte had County rights par land and asked court to determine therein. They also, by restraining ties application had their for a against prosecution order of the case, Platte tаken the position “part involved therein transaction the same sought adjudicated transactions” matter and to have in By Clinton ease. their own actions had vested complete jurisdiction Court with over person both *11 subject controversy matter to to do full the determine whole
justice plaintiff. between them and describing situation, by filing
In this petition the second amended County only the defendants' land, accepting Platte was challenge try all out and determine in the case compensation matters between as to for services. The them their change by brought in Platte the was invited land petition made evidence admitted defendants and the conform to the (when plaintiff on the by previous Platte the deed was offered ’ in day, response inquiry to the counsel had stated court's objection admission) fully no that there to its so that it stated was subject upon Paragraphs matter the the whole case then trial. “A,” “D,” petition “B,” “E,” “F” first amended were of the substance, wording’ repeated in in the part exact in and for the most Only there an paragraph second amended as to “C” is originally “C” the important Paragraph stated that difference. conveyed security” fees, land was “for for defendants’ and that the attorneys’ due fees the de- deeds “the consideration to be for showed petition recitals deeds fendants.” In the second amended the of the set was for out as did show consideration are attorneys’ written so pay- fees due and that deеds were each allegation certain threeof. The same is made ment a- amount security actually “for their these deeds made property reconvey the fees.” It further stated “that would this litigation Defendants contend that when was over.” the said agreement alleges specific an performance” “an action in to enforce right originally However, petitions not stated. both claimed the con- allegations was upon the land made both the land veyed fees been security that these had for defendants’ fees and de- fully paid. petitions The issue both whether ultimate under conveyance their an as fees got fendants absolute al- We security for fees. construe conditional reconveyance, the others legation concerning connection with referred, although abso- mean that to which we have as intended to security for fees and were in fact lute terms deeds fees right upon all set aside the claim have them was based nothing it could reason- stated from which paid. been had There agreement any other reason. ably convey for as an construed departure the second amended construed, Thus subject concerning whole claims only it stated because sought counterclaim brought by defendants’ case matter into Evers, conveyed. Younger v. redemption property [See cases (2d) W. 64 S. cited.] action, affirmative thus broadened by their had, Since defendants case, surely had changed the nature issues right accept their invitation to try out controversy in one whole suit, filing their second amended to conform the evi- dence objection received without and to cover on the whole then case trial issues raised defendants’ own pleadings af- seeking firmative relief. R. S. They might joined [Sec. 1929.] by reply issues injected all new issues defendants’ counter- (in claim nature o£ bill), cross so that chan- *12 cellor could have proceeded “hear and determine the an matter as equitable proceeding grant full complete relief.” [Reynolds v. 339 Stepanek, 804, (2d) Mo. 99 S. W. good We can see no 65.] why, reason after the trial has commenced whole subject and the put matter objection, in evidence without thing same the should be not done In Whiting Enterprise v. & Sheep Land Co., 374, 265 589, Mo. 177 S. W. this unpleaded court said: “If grounds during relief were progress disclosed the the trial, application an amendatory for an supplemental petition or timely.” have would been We have also held that when “the answer aforesaid contains all the facts which could been set up have in the petition (relating ato deed of trust), express under the doctrine of aider, we dispose though will the case contained ’’ necessary calling facts question validity of trust. said deed Cemetery v. Caretaking 41; Co., 424, 283 Mo. 223 W. S. [Allison see, also, Hart, 64, 825; Ricketts v. 150 Chase, Mo. 51 v. S. W. Casler 160 418, 60 1040; City Mo. S. Maysville Truex, W. v. 235 Mo. 619, 390; 139 S. (Mo.), W. v. Tucker Wadlow 184 S. ex 69;W. State rel. Dilliner v. Cummins, 609, (2d) 338 92 Mo. S. W. We 605.] stage it proper, hold that was this at case in this situation permit for the court to this amended filed. be complain Defendants further of the trial court’s refusal allow a of exceptions term bill showing the action of the court on attacking pleadings April, 1936, their motions term. This at term was the at which the trial was the final decree entered. had and request Defendants bill did not this term until after trial had exceptions, commenced. did a bill this The court allow before term, showing everything includ ended, place term took at sought term re ing what shown in the bill may quested exceptions A term bill evidence at trial. prior to taken at trial term show matters which occurred be it bill the trial essential that be embodied the final is not it Co., 425, 129 Ry. 229 Mo. trial. Wabash which covers the v. [Dean better) (and think we However, proрer practice W. it is S. 953.] everything be shown exceptions covering desired to to have one bill previ term, bills have been allowed transpired one if term at so final they may one bill ously during term be embodied same Manthey See v. Kellerman Con- exceptions term. covering the whole [ 792
tracting Co., 147, 311 927; Mo. 277 W. S. St. Klene v. Louis-San Ry. Co., 162, Francisco (2d) 950; 321 Mo. 9 S. W. Smith v. Ohio Millers Co., Mnt. Fire (2d) Ins. 320 6 146, Mo. S. W. Since 920.] term exception no bill of this case asked until after the trial was commenced, proper we it require hold that for the court to exception all matters of occurring in the April, 1936, term to be presented exception. in one bill of support
Defendants further contend the evidence does deed, impeach decree and cites that evidence to divest rule clear, title, cogent, establish a trust must and convinc positive ing so as leave no room for reasonable doubt. Norton v. [See 1024; (Mo.) (2d) Gaugh Gaugh, Norton 43 S. W. v. 321 723; (2d) 729; LaRue, S. W. 294 LaRue v. 317 Mo. S. W. ap Chambers, Chambers v. 227 Mo. S. W. This rule 86.] sought plies to cases wherein it is to have an absolute mortgage. (Mo.), declared be a Funck S. W. [Snow herein, 2, and In the entered cases decree the court found cited.] attorneys represented “that the defendants under agreement by pay them fair reason was to *13 expenses, court services, plus their the finds that able fee for and prior with plaintiff paid to institution of this settled and the suit costs, cash, expenses in and the further sum defendants, all .and the at attorneys’ fees, that fair of and reasonable $4500.00 as and exceed torneys’ be, not to fee their services would for May 1931, plaintiff con .; . . that on $3500.00 the sum- of following Platte lands in and veyed the the conveyances land) were (describing that said Counties, to-wit: and securing payment the purpose to the defendants for made attorneys’ expenses, and enable the defendants fees their and cost, appeal bonds making for or purpose for the use the land ac institution of this that prior and the finds to the plaintiff, court expenses, and full for their fees in tion, plaintiff paid obligations executed, or other appeal cost bonds that or were no lands, respect said defendants with by the incurred true, conveyance, the all times since said plaintiff, and was at is now fоund The court further said lands.” owner of lawful and by de with deposited him *14 then afterwards of rendered of all the services ment rep which were matters in in connection with rendered to be $150,000 made, (When those deeds were resenting plaintiff. had tried, and been against had plaintiff of affections suit alienation appeal two him, against after settled $25,000 verdict in a resulted plaintiff’s $35,000 paid on recover years the suit to $7000; later for settlement; by a $3000 ended had been promise of settlement breach with foreclosures connection services in most defendants’ of been fur have court AA7ould The performed.) been collections had finding plaintiff all sums ther warranted that $8000 credited should be were made these deeds fees after reconveyance up to have a entitled plaintiff that total fees and that theory upon plaintiff’s Even only of balance. court that cannot fees, we hold fix total was to defendants’ he could under this disregard evidence the fact that he by written did recognize instrument that defendants’ total $8000. fees would be Plaintiff not did any explanation make to contradict this amount stated in the deeds. He not did claim that any mistake, there was fraud or concealment as to this signed when he amount the deeds. allege His representations did false as to litigation character of the in which he was involved but his evidence falls far short proof allegations. of those The record shows that litigation he was involved in very serious kind. Plaintiff him self thus testified: ‘‘ Q. you now, What do tell the court as whether Field Rob- grossly misrepresented erts you litigation and claims which you were representing on would lead to ‘almost certain arrest and conviction charges under serious criminal and servitude penitentiary, judgments addition to large in a sum would completely deprive right him of practice his medicine’—that is your petition the statement in on which being this case is tried, and I want to know from you, sir, whether it untrue. A. is true or really deep That is me; too I don’t know ‘savvy’ whether I it Q. not. or You know it not; you don’t whether or so can’t know whether grossly represented Field and Roberts misrepresented or litigation condition of you the trouble in, were you? do A. might I don’t know what been outcome, being acquainted not legal things.” (He with alsо very said: ‘‘I that don’t understand you well, reading; . my lawyers’ work, are . . I them.”) it will refer mistake,
Absent or explanation fraud what plaintiff make could deny (when deeds) recognize he did he agree made the that defendants were entitled to be is in- $8000? total fees It although timated, plaintiff did testify, not deeds so purpose concealing for the covering up land judgment wholly from his creditor and that consideration was or in If part plaintiff testimony fictitious. had so testified such would appeal equity. not the conscience of a court In a situa- similar tion, equally conveyance this court said: ‘‘It is clear that to de- purpose defrauding plaintiff’s fendant was made for creditor. To allow violate the maxim recover in this case would equity equity who comes a court of with he into must come ‘ case, supra, clean hands. This court said in Chambers that courts litigants equity chary reaching helping are out a hand those predicament voluntarily put in the of this who themselves by voluntary hinder, delay, cred- land to defraud ” Jefferson, S. W. itors.’ [Jones 555.] herein support findings We hold that the evidence could *15 ’ attorneys fees that were in the the amount decree as to secured case, authority to equity Since this court has these deeds. this is an equity judgment as finding make its own enter such “proceed (2d) justice Bailey, 22, 44 S. W. require.” Mo. v. [Friedel detail Although us shows considerable the evidence before 9.] (Field’s put in evidence deposition what defendants did litigation, possible character of it is not plaintiff) fix if wе should total amount final decree. Even to enter a amounts attorneys’ nothing what fees, there is to show defendants’ Therefore, we could deeds. to them after he made accounting of Moreover, due. not the amount now determine any prop- matters other profits from the land the rents and between establish the balance involved, must erly be made to parties. Ferguson and remanded. cause
The reversed decree is GO., Bradley, concur. adopted opinion by Hyde, C., foregoing
PER CURIAM: The JElays,J., judges except concur, opinion of court. All as the absent. Rehearing. Modify
On Motions motions filed respondent have Appellants each HYDE, C. says Respondent rehearing. modify respondent seeks also consider- оpinion holding that recitals contravenes decisions testimony. explained by may parol ation in deed be contradicted v. 636; Hunter Wells, (2d) 5 W. 930, S. [Citing Cave v. holding Hunter, App. 721, that 327 Mo. 82 W. such evidence was S. 817, 557.] 39 S. W. [7] proper The opinion 359; and “was sufficient to See fully recognizes Mallonee, 107 Mo. this warrant rule, finding security the deeds were conveyances It further fees instead absolute in fee.” make (although explanation proper) “plaintiff holds that not did any We explanation stated in deeds.” to contradict amount this only say explanation, must be the absence these deeds of such Re- recognition considered as due. least amount was at spondent’s are, motions therefore, overruled.
Appellants remanded contеnd cause should not be They but finally that, the parties reversed. since contend none of County, residents of jurisdiction could confer agreement (or any manner) Court Circuit of Clinton any try except matter title to the real estate because Section Revised Statutes authorizes under Sec tion 720, Revised Statutes other suits brought must county is, It parties where one of the resides. course, true *16 796 it suit jurisdiction County had Court of Clinton Circuit rem) (in suit 722 such Section authorized because was commenced there. brought be involving land in title to the theory, mortgage equity and, This was in suit he depended proof right aside the deed asserted to set
his
void
prevent or render
nothing.
720
Does Section
defendants
owed
parties
(in personam) between the
matters
determination of all
a
than
deeds secured or
suit, involving
more
how much
seek to
defendant,
though they both
(if any) plaintiff
even
owed
commencement of suit
720,
submit
Section
such matters? Under
(in
plaintiff
personam) by summons in Clinton
where the
compel
(who
reside there
did not
did not reside could not
either)
Like
try
there.
personal appearance
to make
a case
such
wise,
720,
under
could
have commenced a
Section
not
County against
suit by
summons in Clinton
for fees claimed
compel
be due
appear
try
However,
case.
plaintiff to
fixing
county
“statutes
confer
venue
of defendant’s domicile
personal privilege
a mere
may
en
party
which
be waived
titled to
129,
assert it.”
Here,
parties
C. J.
re
see.
both
[67
212.]
quested thе Circuit Court
County to
of Clinton
determine
amounts
due between them. When
bill
defendants filed a
or counterclaim
cross
seeking
judgment
affirmative relief of
a
amount,
for an additional
suit
necessarily
question
involved the
of whether or
already
had
been
in full,
when
generally denied the
claims made in the cross bill,
when
parties
both
into a
entered
trial on the
issues,
merits
should either thereafter
be heard
say that the court was
jurisdiction?
then without such
We think not.
It
rule
settled
that lack
jurisdiction
subject
of the
matter can
not be waived or
by consent;
conferred
but
equally
it is
well settled
jurisdiction
over the person may
waived,
and we hold that
waiver of venue in
transitory
action comes within the latter clas
sification.
Bank
[Farmers
v.
&
St. L. H.
Co.,
App.
Railroad
119 Mо.
1, 95 S.
286;W.
Martin,
Tual v.
Defendants’ motion is likewise overruled. opinion by Hyde, C., adopted PER foregoing' CURIAM: The opinion judges of the court. All coxxcur. notes the owner that was no “defendants have City that Bank and fendants or in the Kansas that de The court decreed title, interest therein.” right, or lien they therein, interest title or right, of all “divested fendants be conveyance proper deliver a to execute and are ordered and directed to deliver “are directed that defendants plaintiff;” lands to the said temporary “the note;” that Silverman $5000.00 plaintiff court, November in of this grantеd by judge injunction pro- continuing further or from restraining the defendants cause ceeding with suit No. 423951 in pending the Circuit Court of Jack- son . . . is hereby made permanent.” concerning Plaintiff testified, de- land to fendants, as follows: “Q. Now, you how come conveying to make deed title to two those farms to Well, Field and Roberts? ... A. told they it was in necessary, in, they me the circumstances might I was that make called on to appeal bonds, bond and cost they and also said it security. would serve as ... securitj^ As for the I that would fee them, according owe which would be settled to our contract later on. . . . through And when services, we were with all their that we would according made, settle to that written contract we had they then Q. . would return the me. . . How farms to money, much expense, you paid exclusive costs actually have attorneys’ to Field in you and Roberts fees these matters that described? $4500.00, have A. About including that was $500.00 Q. on that land. The Yes. appeal? foreclosure matter A. Q. . . . How more want they (in much did after termina- say they A. litigation), you They tion of what it? did thought $6000.00' wanted ... I for the more. them that I told they they services had . . . rendered been sufficient. had Q. they you give if them say $6000.00 Did would did money, Yes, they back? A. did.” more would the farms deed finding This other sufficient to warrant evidence Avas security fees in deeds findings conveyances Nevertheless, fee. of absolute stead contrary in face of result the decree reached are in (stated fact set out second amend conceded the deeds him) plain these deeds petition and offered evidence ed recognized due defendants. court $8000' The tiff a total fee of pay finding this fee full justified been would