177 Mo. App. 234 | Mo. Ct. App. | 1914
The plaintiff sued defendant for twenty-five hundred dollars and recovered judgment
We know of no case, however, going further than to hold that the case will be tried on appeal as if a reply was filed “putting in issue” the affirmative defenses contained in the-answer, i. e., “denying the new matter in the answer.” [Thompson v. Wooldridge, 102 Mo. 505, 510, 15 S. W. 76; Heath v. Goslin, 80 Mo. 310, 318; Ferguson v. Davidson, 147 Mo. 664, 670, 49 S. W. 859.] It cannot be said that the failure to reply raises any new and affirmative defenses to the defenses alleged in the answer, such as the payment of the debt secured by the mortgage or that the execution of the
It is therefore apparent that no issue was raised by the pleadings even when aided by the fact of going to trial without a reply, except the issues raised by a denial of the allegations' of the answer as to defendant taking and selling this property under and by virtue of the mortgage pleaded. We are, of course, here speaking of the effect on the pleadings of going to trial without objection for want of any reply and not of the effect of admitting evidence without objection as to am affirmative defense not pleaded, presently to be discussed.
Hnder these narrow issues the evidence shows that the trustee in this chattel deed of trust, at defendant’s request, took this property from plaintiff and advertised and sold it, thereby depriving plaintiff of the same. It was also shown that defendant had sold the property in question to one Cook in' the first instance and that B. B. Hubbs and W. N. Asbridge, former owners of the same by purchase from Cook, executed the deed of trust in question on said property to secure the notes given for the purchase price. The deed of trust was at once placed on record in Dent county, Missouri, where the mortgagors lived and the property was then and thereafter kept and used.
The defendant read in evidence its mortgage and the execution of the same by Hubbs and Asbridge was shown and admitted, except said parties undertook to claim that this mortgage had been changed after its execution by them and that when executed it did not contain or secure the first four notes of $275- each, of daté June 3, 1907, as described therein. This deed of trust, dated September 9, 1907, recites: “Whereas, the said party of the first part (Hubbs and Asbridge) is indebted to said party of the third part (defendant) as evidenced by the following promissory notes, to-wit. . . . ” Here follows a description by date, amount, when due, etc., of twelve separate promissory notes aggregating $2150, and the mortgage then proceeds: “Now if the above notes shall be well and truly paid according to the tenor and effect thereof, when the same become due and payable after this deed has been recorded by party of the first part, then this instrument shall be void, and the property hereinbefore sold shall be released at the cost of said first party.;” and then provides for a sale in case of default in such payment and on several other contingencies therein mentioned.
As has been shown,'the deed of trust recites that the makers are indebted to defendant in the sum of each and all the notes described therein and describes these four notes of June 3, 1907, for $275 each, with the same particularity as the other notes. There is no claim that this mortgage bears any indications of any alteration or interlineation, but, on the contrary, as
It must- be held, therefore, in the absence of any equitable defense having been interposed by plaintiff, that it- was not competent to contradict and vary the terms of this mortgage by showing that the first four notes described in and secured by the deed of trust were already paid or cancelled and that same were not a valid lien against this property. Yet, we find that the court instructed the jury for plaintiff by instruction numbered 1, that if they found that plaintiff was the owner of the property and had paid all the indebtedness against it, then defendant was guilty of conversion in taking it under the mortgage. Plaintiff did not claim or try to prove that Tie or anyone had paid these four notes described in the mortgage, at least after its execution. His claim was that said notes were already paid, or, at least, agreed to be can-celled, before this mortgage was executed and, therefore, were not a valid lien against the engine in question at any time nor against the separator and other property after the execution of this second mortgage, although included in and secured by both mortgages.
The verdict is also manifestly against the law as declared by the court, for the court instructed the jury by instructions numbered 2 and 4, that this mortgage of September 9, 1907, made all the notes described therein, inclusive of these four notes dated June 3, 1907, a valid lien on this property and to find for defendant if anything was due thereon. Yet, as they
The case was tried and the evidence went in with little reference to the issues made by the pleadings. Most of the evidence should have been, and doubtless would have been, excluded had objection been made on this ground. Defendant is to blame for most of the errors it complains of. While appellate courts are prone to hold the parties to the same theory on which they tried the case below, and properly so, and to broaden the pleadings to cover the issues which the parties, without objection, allowed to be tried there, yet, as this was tried throughout as a suit at law, we are not authorized to treat it as ashing for equitable relief as against this mortgage and allow plaintiff, without any appropriate pleadings, to avoid the same for fraud, accident or inistahe in its execution, where the trial court did not so treate it in the instructions given. See also Kelerher v. Henderson 203 Mo. 498, 514, 101 S. W. 1083, to the effect that where evidence is only incidentally introduced sustaining an unpleaded defense the court should not submit such issue. Under the law as declared by the court the plaintiff could not recover and the verdict should have been for
We will, therefore, reverse and remand tbe case that tbe parties may, if they so desire, reform tbe pleadings, make tbe issues on paper, and try tbe case on sucb issues and in conformity with tbis opinion.