204 Mo. 442 | Mo. | 1907
This is a suit in equity begun November 14, 1903, to foreclose liens on certain land in Butler county. The petition is in three counts, each based on a separate contract, but all of the same character. The statements in the first count are to the effect that on December 17, 1891, defendant John Gr. A. H. Zehnder, being then the owner of a farm consisting of tbe south half of the southeast quarter of section 27, township 25, range 6 east, containing eighty acres, entered into a contract in writing with the plaintiffs whereby the plaintiffs sold and agreed to deliver to Zehnder three hundred fruit trees, to be planted on this land, for the sum of $125.50, to be paid in certain annual installments as therein specified, with sis per cent compound interest, the last payment to be made ten years from the date of the contract, and it was therein stipulated that the purchase price and interest should be a lien on the farm from the date of the contract until paid in full; that plaintiff had delivered the trees,'but defendant had failed to pay the price or any part thereof, that the contract was duly acknowledged and recorded January 2, 1892. But, the petition
In the petition Zehnder was the only defendant named. He appeared at the return term and filed an answer, and at that term also appeared his wife Mrs. Zehnder who petitioned the court to make her a party defendant, which the court did, and she filed an answer wherein after a general denial she set up the plea that the land in question was hers, that her husband acting as her agent bought it, but without her knowledge or consent took the deed in his own name, that the purchase price was paid with her money, her separate statutory property, that the alleged contracts on which the plaintiffs sue if made as claimed were made without her knowledge or consent. In her answer
Zehnder’s answer admitted the signing of the contracts and then a general denial. It also' set up the affirmative plea that the plaintiffs imposed on him in the making of the contracts in certain respects which it is not necessary now to specify and he also pleaded the ten-year Statute of Limitations against the claim to reform the contracts.
The plaintiffs filed a reply saying that the fact that the land was not correctly described in the contracts did not come to-their knowledge until 1903, and as to Mrs. Zehnder’s claim the reply contained several averments intended by the pleader as a plea to estop her from claiming that the land was hers, but as the record before us is not in shape to go into the questions of fact it is not necessary to set out those averments.
The cause comes here on a short transcript, from which it appears that there was a judgment for the plaintiffs on all the counts granting the relief prayed, and from that judgment the defendants appealed.
I. Appellants have filed what they call, “Abstract in Lieu of Full Record,” in which is contained the pleadings, evidence and several statements as of the rulings and proceedings of the court in the progress of the trial and subsequent thereto, but it is impossible to tell from this abstract whether the alleged rulings and orders of the court appear on the face of the court record proper or are preserved only in the bill of exceptions.
Upon that condition of the abstract respondents base a motion to dismiss the appeal. We should not dismiss the appeal in this case because we have, in sufficient form, the pleadings, the judgment and the order allowing-the appeal, and appellants are entitled
The abstract should distinguish between what it intends to say is shown by the record proper and what it intends to say is shown by the bill of exceptions. The bill of exceptions alone should contain the motions and exceptions to the rulings, but the record proper should show that the motions were filed and the rulings of the court upon them. A statement in the bill of exceptions that a motion for a new trial was filed and that it was by the court overruled is not sufficient to show either that it was filed or that it was overruled. A bill of exceptions standing alone cannot prove its own validity, a statement therein that it was signed and filed is not sufficient evidence of the signing or filing. The bill of exceptions derives its right to recognition solely from the fact that the record of the court shows that it was filed. Those facts must appear on the face of the record proper- and when the abstract undertakes to state such facts it should state, if such is the fact, that the record proper so shows. It is not necessary or desirable to copy the record entries into the abstract, it is sufficient if the substance is stated. The office of the bill of exceptions is to preserve those proceedings in a cause which do not appear in the record proper and the exceptions taken to the rulings.
In this case there are no record entries showing
II. The purpose of the petition is to reform the contracts and foreclose the liens. The petition states that it was the intention of the parties to describe,' as the land to be bound for the payment of the debt, the south half of the southeast quarter of section 27, township 25, range 6 east, but by mistake that land was not described in the contract, other land was described.
Among the defenses set up both by Zehnder and Mrs. Zehnder was the ten-year Statute of Limitations in reference to the plaintiffs’ right to reform the contracts. The plaintiffs’ only reply to that plea was that they did not discover the mistake until 1903. The contracts were made in December, 1891, and January, 1892; the suit was filed November 14,1903.
So far as Zehnder is concerned the petition prays two remedies; one a personal judgment against him for the debt, the other a reformation of the contracts and a foreclosure of the lien. To each of these demands the defendant had the right to plead separate defenses; if he makes good his defense to the first it ends the case in his favor without reference to the second, but he may fail in his defense to the first yet still prevail in the second. His plea of the Statute of Limitations is not directed to the question of his personal liability for the debt because the last installment of the debt was not due until January, 1902, but though the plaintiffs’ right of action for a personal judgment be not barred their right to' a reformation of the deeds may be. So far as Mrs. Zehnder is concerned the especial relief of reformation of the deeds is the only feature of the case in which she is interested, and to that she pleads the Statute of Limitations.
The aim of .the plaintiffs is to subject this land, as the property of Zehnder, to the payment of the debt he owes them; if they are satisfied with a personal judgment against him with the incidental rights that will flow from it, Mrs. Zehnder has no right to interfere in their suit to obtain such a judgment, but when they invoke the power of a court of equity to reform contracts which her husband made while he held the legal title to land that in equity belonged to her, so as to convert them into mortgages of her land, an act which, though it is said he intended to do and ought to have done, yet he in fact did not do, then she is entitled to be heard.
A right to maintain a suit in equity to reform a deed is barred after ten years from the date the right accrued. [Sec. 4272, R. S. 1899 ; Hoester v. Sammelmann, 101 Mo. 619.]
If there was a mistake in the description of the land in the written contracts, as the plaintiffs say there
It is said in the brief for plaintiffs that as for Mrs. Zehnder the Statute of Limitations will not avail her because the land was not in her possession but in that of her husband. It would not help the- plaintiffs ’ case if it were conceded that she was not in possession because the plea of the Statute of Limitations is as •good a defense for Zehnder as it is for Mrs. Zehnder. But the point is not well taken, for possession is not necessary to the maintenance of this plea; besides, if it were, if the land, as between Mrs. Zehnder and her husband, was hers, his joint possession with her was her possession. Epperson v. Epperson, 161 Mo. 577, to which plaintiffs refer on this point, does not sustain their position; that was an action in ejectment for land which defendant claimed under a deed which he claimed intended to describe but by mistake did not describe the land sued for; in addition to other defenses he asked equitable relief to correct the mistake. It was held that the defendant having taken possession of the land in 1870 as soon as the deed was executed and held possession until 1896, when the suit against him was begun, his possession prevented the Statute of Limita
The only reply the plaintiffs made to the defendants’ plea of the Statute of Limitations was that they did not discover the mistake until 1903. That fact is not sufficient to prevent the running of the statute. In section 4273, Revised Statutes 1899, it is provided that an action for relief on the ground of fraud may be commenced within five years after the discovery of the fraud, allowing ten years in which to make the discovery. The pleadings in the record before us present no case under that clause of the statute; the case made in the petition is one of mutual innocent mistake. Section 4290 declares: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement -óf such action shall have ceased to be so prevented. ” It is not charged that either of the defendants was guilty of any act that prevented the plaintiffs from commencing their suit to reform the deeds. Indeed the averment of mutual mistake negatives the idea of fraudulent conduct. In Wells v. Halpin, 59 Mo. l. c. 97, discussing the clause of the statute last above quoted, the court said: “The mere fact that
plaintiff was ignorant as to where his property was, and that in consequence he could not bring an action, will not be sufficient in itself to make his remedy availing. It must further appear that plaintiff was prevented from bringing his action in time by some com cealment or improper act on the part of defendants.” And in Hoester v. Sammelmann, 101 Mo. 619, already above referred to, the court applied the same rule to a proceeding in equity to reform a deed wherein the plaintiff had alleged that he was ignorant of the mistake
On tbe face of tbe pleadings tbe plaintiffs’ right to sue in equity to have tbe contracts in question reformed in tbe particular of tbe alleged misdescription of tbe land was barred by tbe Statute of Limitations before tbe suit was begun; therefore, tbe judgment in tbat particular is erroneous and must be reversed, but tbe judgment is good as a personal judgment for so much money against tbe defendant John Gr. A. H. Zehnder.
Tbe judgment is reversed and tbe cause remanded with directions to the circuit court to enter judgment in favor of defendants on tbe plaintiffs’ demand to reform tbe contracts, to correct tbe alleged misdescription of tbe land, and to enter a personal judgment in favor of the plaintiffs against tbe defendant John Gr. A. H. Zehnder for $249.68 on tire first count, $3,954.41 on the second count, and $298 on tbe third count, with interest at six per cent per annum from June 23, 1904, tbe date of the judgment appealed from; tbat Mrs.' Zehnder go hence without day, and tbe plaintiffs and John G-. A. H. Zehnder each pay one-balf tbe costs in tbe circuit court.