*1 George Wolfersberger S. Hoppenjon, Glenna H. Rech ner and Emma Appellants. (2d) S. 814. W. Two, February 23,
Division 1934. for appellants. Hale Houts L. E. Durham Conrad, Henry S.
8.19 *3 Ray- Beery Walter Prince, N. A. Johnson, W. James C. M. J. respondent. mond *4 against FITZSIMMONS, brought Respondent suit (plaintiff) C. (defendants)
appellants de- County in Court to Circuit Jackson City, alleging termine the title to certain real estate in Kansas appellants sought $22- Respondent claimed some title thereto. also wrongful damages $25,000 actual punitive damages for the possession detention there premises. Upon jury trial before was a against verdict all in favor $15,000 appellants for possession' title and and for property damages. defendants, actual From G-lenna the three Hoppenjon, Charles H. and Emma wife H., appeal to this property court. involved is described The by Twenty-seventh street numbers as 2757-2759 2761-2763 East Street, City, Kansas improvements Missouri. consist of two six-apartment buildings. property It is the which was the same subject matter whоlly controversy of another and presented different Miller, 1150, the case of Wolfersberger (2d) Mo. S. W. 758, decided Supreme Court, Two, Division March 1931. The plaintiff there is the person here, same but no defendant party suit is a to this action. Appellants’ assignment
I. first of error is directed at the order of the trial in overruling court their motion to transfer cause equity docket, to the alleging upon plead- the motion n ings cognizable only. the cause was in a court of An assignment examination оf this requires summary pleadings. In his (of amended that he was the owner title) simple controversy; fee the property asserted title some to the real estate based contemporaneous signed contract of re- settlement spondent 1924; February signatures wife on re- spondent and his wife to the deeds and the contract of settlement fraudulently were Rechner) by appellants, (Charles obtained one of whom falsely asserting ownership in due course two cer- promissоry tain $1725, notes of each executed respondent and George January, wife to one M. Hansen in which notes were *5 particulars general to be void for fraud. The allega- of this given, tion were being then the substance of them as follows: . January, 1923, Wolfersberger In was the owner of equities buildings apartment of the two at 2757-2759 2761-2763 and Street, City, Kansas Missouri, equities East Twenty-seventh acquired George M. Hansen he had in a trade months before. a few 1923, still agent January, had acted as his and in the trade falsely representing represented respondent. pretended Hansen and of to $3,450 in the sum resnondent that the latter was indebted to Hansen chargeable to apparently for commissions other items apartment operation resnondent in and in the two the trade the of represented buildings falsely to re after the trade. Hansen further spondent, petition charged, buildings apartment the 'per $1,750 year netting all in excess of and would continue to net payments charges. operating re- on encumbrances and Resnondent. iving upon representations, fictitious “in satisfaction said these of 1923, exeuted, mentioned, January, two indebtedness” at the time $1,725 each, promissory payable order to the notes for the sum of date, payable year per of cent Hansen one after with interest at six trust, semi-annually, and executed deeds of one also respective apartment building, payment on each secure the that, charges petition request notes. The Hansen further at the of respond upon representations pretenses, and in his reliance false transaction, assigned part ent also and of Hansen the same properties necessary all of operating the net rentals of the over and above taxes, expenses, on principal payments interest and trust, agreed first and temporaneous of in another con second deeds and Hansen monthly writing, to endorse the net rentals on оne bQ satisfied, notes until that note was that the notes were to said paid rents, only proceeds and satisfied out of the net derived from them; discharge plaintiff unless to otherwise and that chose bp discharge notes, payment and other note of one of the would year maturity, extended another from its so as to enable the discharge pay proceeds both of notes out of net said agreement properties, purpose “which it was the Hansen said violate, knоwing impossibility except satisfying to by said notes aforesaid,” properties sacrifice etc. February, charges further Hansen agenev including apartments and, assumed up Oc- tober. he all rents and collected made all disbursements but $1,725 each; failed to credit anv net rentals on either of the notes for suggestion that in fall Stiles, at the Frank E. one voluntarily apartments relinquished agency Hansen Realty Stiles, subject Company Frank E. the Stiles or to however right applied continued оf Hansen to have the net rentals on Hansen, notes; that, knowledge respondent, without notes, purpose wrongfully collecting endorsed in blank them appellant, them Stiles for H. and delivered Rechner. the thereof, “having agreed said payment latter to take notes and enforce name, provided his his interest and his participation in the scheme disclosed;” that in transfer of was not the notes to StiFs *6 in be- secretly and knowledge respondent acted and of without the cоmpany appellant although realty half of and his Stiles apart- management of the respondent’s agents at the time were the ‘‘ time charges: of property. petition ment That at The further agents, aware of transfer, were said defendants herein or their the conditions and facts which notes were executed under said plaintiff, is the of on and it properties, the actual income said plaintiff charges of be transfer belief the fact to that said he considering apart default, occurred them after said notes were contemporaneous agreement from the aforesaid.” petition proceeded allege The January that about days “pretended maturity” appellants few after notes February 7, began publication of notices of sale at vendue on public apartment properties of deeds of trust foreclosure given February 5, 1924, payment notes; on secure the that purpose fraudulently wresting plaintiff owner- “for of ship apartment properties depriving of said of and also right him potential redemption of his the event allowed law aforesaid,” falsely trust appellants foreclosure under deeds of represented respondent Hoppenjon G-.M. the owner that one was $1,725 each; Hop- was appellant of the two notes for that agent the notes penjon’s acquired for the collection of notes who anything on for a consideration befоre was due them and valuable surrounding nothing knew of the facts their execution who .and appellant with Hoppenjon proceed had instructed Rechner to that February 7, 1924, on unless that time the sale before foreclosure agreement petition paid compromise was made. The *7 notes and released of the deeds trust and mailed these instruments back, to respondent; respondent that but the tender tendered them refused; Hoppenjon was M. Hoppenjon that G. in fact Glenna was (one here) stenographer-in appellant of a Rechner’s the office; notes; that she did not have interest in that her the name was respondent; used to deceive and defraud the that latter would warranty hot have executed the known had he the concealed facts, deposited in upon and that he the deeds with Stiles reliance agency the-latter’s and his adherence to the conditions of de- livery. allegations By petition, respоndent reason of of the the charged by that “the notes and deeds aforesaid under and virtue n which H. Rechner appellant property Charles asserts title to the utterly charged: herein void and no effect.” are also foregoing, plaintiff’s “That because of to the the title aforesaid real fraudulently, property willfully has been maliciously and clouded necessitating blurred, proceeding quiet and his said title, and deprived possession also been and plaintiff has of the income February property 5, 1924, except aforesaid real since one of the apartments possession therein of which he retained until his forcible January 1925, all removal therefrom to his loss in the sum of ‘ ’’ ‘ $22,000. Respondent prayed the court to- ascertain and determine right, estate, plaintiff title and interest of the and defendants herein, adjudge its define and estate, right, and interest of the and the in title and defendants and to said punitive damages. for property,” and actual and Appellants, Hoppenjon, Glenna H. Charles Emma and their to the petition, answer amended denied that was the owner in respondent simple fee title or of property suit; any right, title or interest in in admitted that estate, right, appellants claimed some title interest in prop- and appellant Hoppenjon legal Glenna erty, and that claimed and property, for appellant title the benefit however of record Rechner. The answer further H. admitted the execution warranty by respondent and his wife of deeds mentioned in the duly these deeds averred that were delivered petition; amended and conveyed property Hoppenjon to Glenna for they the bene- that Rechner; promissoy notes, admitted that appellant fit petition, respondent in the executed and wife mentioned Hansen; George M. averred that Rechner became delivered value, notice; the notes for due course and owner of without agreement delivery admitted the execution and of the written dated February Glenna 5, 1924, appellant between and wife petition. allegations all Hoppenjon, and denied other 28, 1924, up on June defense, further the answer' set As a possession respondent Wolfersberger wife were tenants suit, appellant Glenna apartments premises in the under one of legal title; and record as holder of the Hoppenjon began rent; proceed- Hoppenjon in his thаt Glenna was in default ing against Wolfersberger possession wife rent and for Pollock, H. Peace of Haw apartment before John Justice Missouri, County, township property Township, Jackson located; on Wolfers- process service of was had duly was by agreement bergers; was once continued the action July justice duly rendered that on in. parties; against Wolfersberger Hoppenjon and wife favor of Glenna them; occupied apartment restitution of the -by possession justice duly recorded proceedings before the. transcript County Clerk of the Circuit Court of officeof the Jackson *8 sheriff; Wolfersberger was issued to the writ of execution a writ; appeal no was taken and that under this dispossessed was stage final; proceedings.before is that at no of the judgment by Wolfersberger by pleading did verified justice peace of the to the real estate mentioned in his put in issue title affidavit by estopped of all of which petition, rеason was amended equitable, suit, claiming title, legal or to the land in was maintaining his action and the. of the precluded from rights. adjudicada, respondent’s The answer justice prayed was res respondent’s petition reply for costs. The for dismissal of a judgment” justice peace “so-called void and of no for six and tenant action was effect in the landlord justice. jurisdiction which each of denied the reasons trial pleadings Under as thus summarized should the. appellant’s motiоn to transfer to court sustained cause have common-place equity It is a statement that whether a side? quiet (Sec. 1520, 1929, the statute to title R. S. proceeding under equity or Ann.), is an action at law a suit is to be-de Mo. Stat. The itself pleadings; termined the issues raised statute Hydraulic points way, as said in Peniston v. Press this court 698, rights given by 234 532. Co., Brick Mo. 138 S. W. The claiming any title, go any person estate or interest in statute real “legal equitable.” duty property whether the same be or It is the decree,” “may or it to enter “its of the trial court legal equitable.” complete whether In -the award full and relief Conran, 404, 1151, 213 111 S. case of Lee v. Mo. W. this court for directly question passed on the whether first time or not the parties statutory quiet jury. title are a action to entitled a governing joined rule was to be that: “If the issues declared ordinary judgment then, parties law, entitle the to an at under the 826 a are entitled to State, parties and tbe tbe tbe
Constitution
laws of
equitable
jury;
in tbeir
trial
but
issues tendered
a
if tbe
are
equitable relief,
is triable before
nature and call for
then tbe cause
”
question
tbe
of fact
whether
chancellor.
In that
tbe sole
was
case
dispute
plaintiff owned
the land in
accreted to tbe shore land which
Mississippi
in tbe
River
defendant owned.
or to an island
accordingly
This
reversed and remanded
cause for
court
overruling
application
error of the court in
for a trial
defendant’s
by jury.
964,
Burton,
558,
In the
v.
128
case Minor
Mo.
S. W.
statutory
quiet
this court ruled that
title,
cause
action to
stated
count,
first
because
paper
was
law
on a
title
relied
pleaded
possession beyond
period
and defendant
adverse
ruling
A
Statute of Limitations.
like
for
reason was made
the same
Hydraulic
Co., supra.
Brick
But
the case
Peniston v.
Press
opinion
its
the latter case the court in
admitted that it was in
quiet
clined to
the statute to
title
look
nature of an
to a
proceeding
jury
be tried
court without
or instruc
support
tendency,
(138
expression
tions.
In
S.
the court
535)
again
W. l.
cited four
which we
c.
cases
here
mention.
Wright,
412,
8,
In
v.
204 Mo.
Hudson
S. W.
it was held that
quiet
jurisdiction
not
the statute to
title did
oust the ancient
title,
resulting
to remove clouds from
courts
declare
person
to vest out of
trusts and
one
into another
the title
Perkins,
land.
v.
217 Mo.
In Stone
S. W.
which was
proceeding
title,
statutory
quiet
County
Stoddard
was the com
title,
plaintiffs
mon source of
and the issue
whether
or defendants
superior
had
title.
In this connection
(117
this court
S.
said
720)
uniformly
:
l.
“It has been
W.
c.
ruled that the trial of title
(Sec.
1929)
R.
S.
under Section
is for the court and not
jury.”
Patterson,
In
Hutchinson
ejectment
In our instant his case sought reply, precisely to do what in the Chilton attempted, namely case a on to set aside deeds remove cloud and to fact, respondent’s cognizance.” equitable title —“a matter of In petition alleged respondent in his appellants their acts “cloud necessary ed proceedings and blurred” his title and made quiet (2d) (Mo.), his In title. Cuthbert 14 S. W. 444. v. Holmes that, pleadings prayed this court ruled as the for the cancellation title, a deеd a suit plaintiff’s removal of a it was cloud from that, equity. ease, in It is true does not in the instant in re terms ask for instrument or cancellation moval petition of a title cloud. In his he as nullities the treats trust, warranty agreement, deeds settlement and the two appellants claim, void a reply under and in his he declares justice pleaded But the in the answer. peace, pleadings substance rather than the forms of the question must control equity. in proceeding whether at law a suit is an action etc., Wyandotte etc., Mo. Evans, Judge, [State Lodge, ex rel. v. equitable 310, their last, 75 W. in S. In the cited case issues 914.] changed at statutory action nature held to have foreclosure equitable law into an suit. foreclosure equi that it is not point say proceeding It is not in of this not answer did in in their table its nature because In relief. up set did not ask for affirmative defenses and merely in terms of many quiet plaintiffs declare title actions de only naming and in They parties specific are stаtute. law unless defend scribing involved. These are actions the land affirmative up equitable and ask defenses ants their answer set equity. a suit relief, proceeding becomes which event 107; Rowland, R. 205 W. A. S. 275 Mo. [Koehler Waldron, But the instant 298S. W. Jacobs v. 317 Mo. 773.] language his to the limit did not case execution, delivery further statute. He went *10 proceed trust, of foreclosure recording the initiation deeds of two by a settlement ings deeds, of foreclosure stoppage these the under re delivery аnd the execution, alleged agreement, unauthorized agree- given in with cording warranty accordance of two deeds 828 of the
ment, and the release of the deeds and the cancellation of trust thereby secured, agreement. He notes also terms of the under the nullity proceedings complete these instruments legal prayed quieting for in him from the of the title free up as Appellants, by answer, effect their set of them. de-. equities validity fense the all of- the instruments mentiоned. (except- legal therefore in defenses pleaded and the - equitable plea estoppel) in the answer. In these circum- stances, inquire (as Murray, we did in Mo. this court Hauser v. 376) 165 S. W. general prayer whether for rule that equitable necessary affirmative answer is convert relief an ac- equity, law in applicable tion -at into a suit is in a case of this char- It is not. acter?
What we have said our the trial forecasts conclusion treating wholly in proceeding cоurt erred action at an law. scope B-ut the view- its is that the suit is nature our grounds alleged by him. quiet limited title in damages punitive Insofar as seeks actual and because deprived he was possession proceeding of the premises, the is an action at joins law. Respondent in one count relief he seeks both in equity practice law. The these cases is to invoke in the quiet title, first count the benefit statute to sue, in count, damages trespass wrongful second for for or for deprivation possession. Burton, Minor Mo. S. 964,W. is an example practice. of the recommended
II. In view of our decision is a upon that this suit in involving title, necessary is upon issues not for us to other rule ft assignments arising upon of error subsequent the record made overruling of the motion to transfer. But deem we it fit to briefly notice assignments guidance some of these for the George party chancellor a retrial. M. Hansen is not a to this may effect, legal equitable, suit. Whatever have been the wrongful acts of respondent, Hansen an action between him and Wolfersberger, evidence, was no there substantial direct or circum- stantial, to connect with the fraudulent schemes of Hansen deprive rights holders, them of their as innocent for value maturity, of notes the two before secured deeds trust upon missing apartments-in There was suit. the evidence the n which, connectivity link of fraudulent case of Buchanan v. (2d) 1071, 62 S. bind Mo. W. was held same wrongful appellant here to Buckingham, Rechner who is acts of case. his' in that codefendant ' Respondent urges that, time, III. that appellant $1,725 each,
829 in- in the absence tbe notes themselves bore mark dishonor argues, Therefore, respondent payment dorsements interes.t. value. purchaser for Rechner cannot be classed as a "bonafide Wolfersberger By January 2, 1923. notes terms were-dated their year the sum promised G. M. wife Hansen or one order after.date $1,725. as follows: relating to interest is notеs alleges appellants contract further drafted a of settlement to that, respondent Hoppenjon effect if would execute deliver warranty building proceed- apartment deed to each foreclosure $1,725 ings abandoned, each and the would be the two notes for deeds securing record, them be released and trust would satisfied to, respondent option purchase there would be delivered an deed obligating convey the Hoppenjon аpartments respondent back to latter, 1, 1924, Hoppenjon on or June provided the before tendered to $3,885.37. charges option further deed also drafted, it nor contract of was but neither settlement time, being falsely that, signed represented at the it by Hoppenjon signature owing prevailing conditions, Hoppenjon’s could weather days. but be within a In these not be would available few obtained signed his wife circumstances contract settle- warranty Stiles, them depositеd with ment agreement agent parties mutual under a to this Hoppen- action Stiles was not to deliver these instruments until jon option and delivered the had deeds. executed authority fraudulently Additional recitals are: and without Stiles respondent, appellants delivered the war- to one Or the other of ranty deeds, although recorded, option then were deed no time was delivered canceled respondent;
Notes
notes purchased promissory secured trust, past unpaid intеrest due third
The clause of notes received, per six cent per value “For with interest thereon semi-annually; and payable until paid, annum date interest prin paid due, part if same become interest be not when is to Rechner . . . cipal per total sum to cent interest.” bear year bought than after the notes more than six months but less one most opinion by respondent, We cited date. are the cases bearing unpaid interest past with due of which deal bonds could not coupons point are here. The notes involved here not trust secur have been collected suit foreclosure of deeds of year ing pay one date for failure to them before after first 819; Reed, 270 193 S. W. Mo. semi-annual interest. v. [Wilson Koehring v. 717; Frye S. W. Shepherd, App. Mo. Muemminghoff, Rep. Mo. Am. 402.] IY. not a second trial the court We do believe Emma L. money against appellant, permit below should stand, trial) (as first evi in the absence Rechner In a charged. trial with frauds dence whatever of her connection necessary involving proper party is a title she of the issues Hoppenjon holds Glenna of the answer that view of admissions wife, “and of Rechner title for the use benefit beneficial in H. entire is the owner defendant only rights marital of the de subject property in said terest the inchoate dower said Emma Rechner to-wit: fendant Emma L. Rechner.” prejudicial trial V. For reason that the' court' committed docket, refusing the cause to transfer error Cooley is and the cause is reversed remanded.. Westimes, CC., concur. is foregoing opinion PER CURIAM:- The C../ FitzsimMONS, judges concur. adopted All the opinion court.