Scott v. Robards

67 Mo. 289 | Mo. | 1878

Henry, J.

The petition in this case alleges that plaintiffs were indebted to John B. Éelm-by notes amounting, in the aggregate, to $7,000; and, on the 21st day of March, 1867, in order to secure their payment, tñey executed and delivered to defendant, Eobards, as trustee, a deed of trust conveying for that purpose a large number of town lots in Brookfield, Linn county, Mo4, (describing them particularly ;) that after said notes became due, they paid the principal and interest to said Eobards, and on the 1st day of May, 1872, they duly tendered to said Eobards and Helm the cost of acknowledging satisfaction of said deed upon the record, or making and executing a sufficient deed of release of said deed of trust, and demanded of them the execution of a release of said deed of trust; that said Eobards and Helm, and each of them refused to do so for more than thirty days after such tender and demand, and that since said Helm has departed this life, and that Eobards and Johnson are the executors of his last will, &c.; that neither defendant nor the said Helm delivered to defendant a deed of release of said deed of trust, or released it upon the record, until the 15th day of July, 1874; and that, during all that time it appeared as an incumbrance upon plaintiffs’ land, which they allege they held for sale, and prevented them from making sale to persons, who would otherwise have purchased portions of said lands at remunerative prices, but that, before said deed of trust was released, the lands greatly depreciated in value, and they were damaged to the amount of one thousand dol lars. They further state that, by reason of the failure to enter satisfaction of said deed of trust, plaintiffs were unable to sell or raise money on said land to meet their pecuniary liabilities, and that, as a consequence, they were sued, and judgment obtained against them, and these lands; sold on execution issued oh said judgment; and, by reason of said apparent incumbrance, they were sold at a sacrifice,' to their damage $500. They further state that by virtue of the statute defendants are liable to them, in addition to the foregoing sums, in the sum of ten per cent, on the amount of said indebtedness secured by said deed of trust, amounting to $700, and ask judgment for the twenty-two hundred dollars.

To the petition defendants demurred, alleging, 1st, that the petition did not state facts sufficient to constitute a cause of action ; 2nd, that several causes of action were improperly united; 3rd, that there were three causes of action set up in said petition, in each of which damages were claimed, while there was but one prayer for relief.

The first two sub-divisions of the petition are actions at common law, whether denominated one or three counts, the damages claimed in consequence of the refusal to enter satisfaction of the deed of trust are recoverable, if at all, at common law. The third sub-division proceeds for a penalty prescribed by the statute. There are no separate counts, but three sub-divisions of one count, and there are clearly two causes of action joined in one count. It is no answer to this, that the precise facts which constituted the common law cause of action, also constitute the cause of action under the statute. In the one case the recovery is limited to the penalty — in the other, to the actual damages sustained, which might be greater or less than the penalty given by the statute.

Again, it is not alleged when the notes became due, or when they were paid. It is alleged that, after the notes became due, they were paid off to Robards, and that in May, 1872, plaintiffs tendered -to Robards and Helm the costs of acknowledging satisfaction of the trust deed. Was this before, or after, the maturity of the notes; before or after the notes were paid off? It might be inferred that it was after. It might be argued that plaintiffs would not have been guilty of the folly of tendering the costs, and demanding an entry of satisfaction of the deed before the payment of the notes, but the facts which constitute plaintiffs’ cause of action must be alleged, and the court should not be left to infer unpleaded facts; neither is it alleged that Helm knew, or was informed, that Robards had received the money on the notes. Certainly, in the absence of such an averment, it will not be seriously contended that'a cause of action was stated against him. The judgment of the court sustaining the demurrer is affirmed.

All concur.

Affirmed.