60 Mo. 550 | Mo. | 1875
delivered the opinion of the court.
Action to foreclose a deed of trust to certain lands in Holt county. On application of defendant Hawkins, Patterson and. Massie were served with process, and made additional parties defendant.
By the amended petition, in addition to the ordinary allegations, it appeared that Massie was in possession of the premises.
Hawkins filed his separate answer, wherein he alleged payment of the note, to secure which the conveyance was made ; that plaintiff, in order to cheat and defraud him out of his land, had contrived a sham sale thereof in 1863, and-obtained a deed therefor from the trustee, one -Smith M. White, although he was out of the State when the sale occurred ; that in order to better effectuate his fraudulent purpose, the plaintiff, in 1864, commenced a suit in the Holt Circuit Court to foreclose tiie deed of trust,where,without appearance by defendant, or ser vice on him, either actual or constructive, judgment of foreclosure was rendered, and the property of defendant again sold, plaintiff again becoming the purchaser at a nominal consideration, although the land was very valuable; that having obtained a deed from the sheriff also, for the land thus sold, in the year 1865, he went into possession thereof, and continued to use and enjoy its rents and profits until 1868, when he sold and conveyed the same by-deed of geneeral warranty to defendant Patterson, who, in the same year,
The reply of the plaintiff was in effect a denial of the new matter contained in the answer.
The defendant Massie admitted his possession of the land, but alleged that he had good title thereto, acquired under the trustee’s and sheriff’s sale, through the plaintiff as purchaser at such sale; and through Patterson to himself by mesne conveyances, and averred the validity of all the proceedings’whibh resulted in the sale, at which the plaintiffs bought, and thereby he, the defendant Massie, had acquired all the right, title, interest or estate of the plaintiff in said land. Massie also put in issue the allegations of that portion of defendant Haw-kin’s answer, looking to affirmative relief, and reiterated the validity of his title to the premises in dispute.
The defendant Patterson filed an answer similar to that of .defendant Massie, to that portion of defendant Hawkins’ answer in' the nature of a cross-bill.
Hawkins then filed a denial of those portions of the answers of Patterson and Massie which controverted the truth of the allegations of his answer. In reply to the new matter contained in defendant Massie’s answer, the plaintiff denied the validity of the trustee’s sale under which’he purchased; and as to the sale under the judgment of foreclosure, he averred he “ did not know” whether the court rendering that judgment had jurisdiction or not, and submitted that matter to the court for adjudication.
Thereupon, Massie and Patterson, on the ground that the pleadings .showed that the plaintiff was not entitled to any judgment against the defendants, moved for judgment on ■the pleadings. Their motion was successful and plaintiff has appealed from the dismissal of his suit.
Our statute, (Wagn. Stat., 1015, § 12) respecting practice in civil cases, permits the defendant in his answer, to either specially deny the material allegations of the petition, or to deny “'any knowledge or information thereof sufficient to form a belief.” In Revely vs. Skinner, (33 Mo., 98) a defendant’s answer which stated in reference to a certain allegation, “no information thereof sufficient to form a belief,” was held not to meet the requirements of the statute, and .this ruling followed that of the New York courts, whose practice act, on this point, is identical with our own. (Edwards vs. Lent, 8 How. Pr. R., 28; 1 E. D. Smith, 554 ; 20 Barb., 348.)
But an examination of the law relating to the reply of the plaintiffs (Wagn. Stat., 1017, § 15), shows that he is required to deny “specifically each allegation controverted by him,” and would thus seem not to admit of that latitude of indirect denial on-his part allowed to the defendant. But whatever view may be entertained on this point, it is certain the statement of the plaintiff in his reply referred to, was tantamount to neither a direct nor indirect denial of the allegation in the defendant’s answer, as to the validity of the proceedings, which resulted in the judgment of foreclosure, so that by the pleadings it stood admitted that a valid judgment of foreclosure had been rendered, and that a valid sale thereunder had taken place. Even, however, should it be conceded tliat this were true in point of fact, still it by no means follows that the plaintiff’s suit should have been dismissed, for although the right of a legally valid foreclosure can only be once asserted against the same land (Buford vs. Smith, 7 Mo., 489), yet this does not prevent the creditor from proceeding in an ordinary action for the residue of his debt.
Upon what theory the court proceeded in sustaining the motion for judgment, we are left to conjecture. Judging from
But it has never been held for law in this State, that the transfer of the mortgaged premises would per se carry with it the right to the debt, though the transfer of the latter has always been held to carry the security as an incident (Labarge vs. Chauvin, 2 Mo., 180; Anderson vs. Baumgartner, 27 Mo., 87; Mitchell vs. Ladue, 36 Mo., 533), and as giving the holder of the debt thus assigned the right to resort either to the courts or to the enforcement of the power by the donee thereof, in order to render such security available.
As the defendant Hawkins did not appeal from the decision which so summarily disposed of the plaintiff’s petition, as well as his own application for equitable relief, it is impossible to discnss the merits of his case.
The judgment will be reversed and the cause remanded; Judge Tories not sitting;
