Wolfersberger v. HoppenjonWolfersberger v. Hoppenjon
I.
Appellants’ first assignment of error is directed at the order of the trial court in overruling their motion to transfer the cause to the equity docket, the motion alleging that upon the pleadings the cause was cognizable in a court of equity only. An examination of this assignment requires a summary of the pleadings. In his amended petition respondеnt alleged that he was the owner (of the equitable title) in fee simple of the property in controversy; that appellants asserted some title to the real estate based upon two deeds and a contemporaneous contract of settlement signed by respondent and wife on February 5, 1924; that the signatures of respondent and his wife to the deeds and the contract of settlement were fraudulently obtained by appellants, one of whom (Charles Rechner) was falsely asserting ownership in due cоurse of two certain promissory notes of $1725, each executed by respondent and wife to one George M. Hansen in January, 1923, which notes were alleged to be void for fraud. The particulars of this general allegation were then given, the substance of them being as follows:
In January, 1923, respondent Wolfersberger was the owner of equities of the two apartment buildings at 2757-2759 and 2761-2763 East Twenty-seventh Street, Kansas City, Missouri, which equities
The petition further charges that in February, 1923, Hansen assumed the agency of the apartments and, up to and including October, 1923, he collected all rents and made all disbursements but failed to credit any net rentals on either of the notes for $1,725 each; that in the fall of 1923, at the suggestion of one Frank E. Stiles, Hansen voluntarily relinquished the agency of the apartments to the Stiles Realty Compаny or to Frank E. Stiles, subject however to the continued right of Hansen to have the net rentals applied on the notes; that, without the knowledge of respondent, Hansen for the purpose of wrongfully collecting the notes, endorsed them in blank and delivered them to Stiles for appellant, Charles H. Rechner, the latter “having agreed to take said notes and enforce payment thereof, provided his name, his interest and his participation in the scheme was not disclosed;” that in the transfer of the notes to Rеchner, Stiles
The petition proceeded to allege that about January 15, 1924, a few days after the “pretended maturity” of the notes appellants began publication of notices of sale at public vendue on February 7, 1924, of the apartment properties in foreclosure of the deeds of trust given to secure the payment of the notes; that on February 5, 1924, “for the purpose of fraudulently wresting from plaintiff the ownership of said apartment properties and also of depriving plaintiff of his potential right of redemption allowed him by law in the event of foreclosure under the deeds of trust aforesaid,” appellants falsely represented to respondent that one G. M. Hoppenjon was the owner of the two notes for $1,725 each; that appellant Rechner was Hoppenjon‘s agent for the collеction of the notes who acquired the notes for a valuable consideration before anything was due on them and who knew nothing of the facts surrounding their execution and that Hoppenjon had instructed appellant Rechner to proceed with the foreclosure sale on February 7, 1924, unless before that time the notes were paid or a compromise agreement was made. The petition further alleges that appellants drafted a contract of settlement to the effect that, if respondent would execute and deliver to Hoppenjon a warranty deed to each apartment building the foreclosure proceedings would be abandoned, the two notes for $1,725 each and the deeds of trust securing them would be released and satisfied of record, and there would be delivered to respondent an option deed of purchase obligating Hoppenjon to convey the apartments back to respondent provided the latter, on or before June 1, 1924, tendered to Hoрpenjon $3,885.37. The petition further charges that the option deed also was drafted, but that neither it nor the contract of settlement was signed by Hoppenjon at the time, it being falsely represented that, owing to prevailing weather conditions, Hoppenjon‘s signature could not be obtained but would be available within a few days. In these circumstances respondent and his wife signed the contract of settlement and the warranty deeds and deposited them with Stiles, the agent of respondent under a mutual agreement of the parties to this action that Stiles was not to deliver these instruments until Hoppenjon had executed and delivered the option deeds.
Appellants, Glenna Hoppenjon, Charles H. Rechner and Emma L. Rechner, by their answer to the amended petition, denied that respondent was the owner of the equitable title in fee simple or of any right, title or interest in the property in suit; admitted that appellants claimed some estate, right, title and interest in the property, and that appellant Glenna Hoppenjon claimed the legal and record title of the property, for the benefit however of appellant Charles H. Rechner. The answer further admitted the execution by respondent and his wife of the warranty deeds mentioned in the amended petition; averred that these deeds were duly delivered and that they conveyed the property to Glenna Hoppenjon for the benefit of appellant Rechner; admitted that the two promissory notes, mentioned in the petition, were executed by respondent and wife and delivered to George M. Hаnsen; averred that Rechner became the owner of the notes for value, in due course and without notice; admitted the execution and delivery of the written agreement dated
As a further defense, the answer set up that on June 28, 1924, respondent Wolfersberger and wife were tenants in possession of one of the apartments in the premises in suit, under appellant Glеnna Hoppenjon as holder of the legal and record title; that respondent was in default in his rent; that Glenna Hoppenjon began a proceeding against Wolfersberger and wife for rent and possession of the apartment before John H. Pollock, a Justice of the Peace of Kaw Township, Jackson County, Missouri, in which township the property was located; that service of process was duly had on the Wolfersbergers; that the action was once continued by agreement of the parties; that on July 9, 1924, the justice duly rendered judgment in favor of Glenna Hoppenjon and against Wolfersberger and wife for possession and restitution of the apartment occupied by them; that a transcript of the proceedings before the justice was duly recorded in the office of the Clerk of the Circuit Court of Jackson County and a writ of execution was issued to the sheriff; that Wolfersberger was dispossessed under this writ; that no appeal was taken and that the judgment is final; that at no stage of the proceedings before the justice of the peace did Wolfersberger by any pleading verified by affidavit put in issue the title to the real estate mentioned in his amended petition, by reason of all of which respondent was estopped from claiming title, legal or equitable, to the land in suit, and was precluded from maintaining his action and that the judgment of the justice was res adjudicata of respondent‘s rights. The answer prayed for a dismissal of respondent‘s petition and for costs. The reply alleged that the “so-called judgment” of the justice of the peace in the landlord and tenant action was void and of no effect for six reasons each of which denied the jurisdiction of the justice.
Under the pleadings as thus summarized should the trial court have sustained appellant‘s motion to transfer the cause to the equity side? It is a common-place statement that whether a proceeding under the statute to quiet title (
The governing rule was declared to be that: “If the issues joined entitle the parties to an ordinary judgment at law, then, under the
In Hudson v. Wright, 204 Mo. 412, 103 S. W. 8, it was held that the statute to quiet title did not oust the ancient jurisdiction of courts of equity to remove clouds from title, to declare resulting trusts and to vest out of one person and into another the title to land. In Stone v. Perkins, 217 Mo. 586, 117 S. W. 717, which was a statutory proceeding to quiet title, Stoddard County was the common source of title, and the issue was whether plaintiffs or defendants had the superior title. In this connection this court said (117 S. W. l. c. 720): “It has been uniformly ruled that the trial of title under Section 650 (
In Chilton v. Metcalf, 234 Mo. 27, 136 S. W. 701, in which plaintiff appealed from an adverse judgment in his suit to quiet title, this court declined to consider plaintiff‘s objection that the trial court refused to give certain instructions. The reason for this refusal is
In our opinion, respondent in the instant case by his petition and reply, sought tо do precisely what the plaintiff in the Chilton case attempted, namely to set aside deeds and to remove a cloud on respondent‘s title—“a matter of equitable cognizance.” In fact, respondent in his petition alleged that appellants by their acts “clouded and blurred” his title and made necessary the proceedings to quiet his title. In Cuthbert v. Holmes (Mo.), 14 S. W. (2d) 444. this court ruled that, as the pleadings prayed for the cancellation of a deed and the removal of a cloud from plaintiff‘s title, it was a suit in equity. It is true that, in the instant case, resрondent does not in terms ask for the cancellation of any instrument or for the removal of a title cloud. In his petition he treats as nullities the two deeds of trust, the settlement agreement, and the two warranty deeds under which appellants claim, and in his reply he declares void a judgment of a justice of the peace, pleaded in the answer. But the substance rather than the forms of the pleadings must control the question whether a proceeding is an action at law or a suit in equity. [State ex rel. Wyandotte Lodge, etc. v. Evans, 176 Mo. 310, 75 S. W. 914.] In the last cited case issuеs equitable in their nature were held to have changed a statutory foreclosure action at law into an equitable foreclosure suit.
It is not in point to say of this proceeding that it is not equitable in its nature because appellants in their answer did not set up equitable defenses and did not ask for affirmative relief. In many actions to quiet title plaintiffs merely declare in terms of the statute. They are specific only in naming the parties and in describing the land involved. These are actions at law unless defendants by thеir answer set up equitable defenses and ask affirmative relief, in which event the proceeding becomes a suit in equity. [Koehler v. Rowland, 275 Mo. 573, 205 S. W. 217, 9 A. L. R. 107; Jacobs v. Waldron, 317 Mo. 1133, 298 S. W. 773.] But in the instant case respondent did not limit his petition to the language of the statute. He went further and alleged the execution, delivery and recording of two deeds of trust, the initiation of foreclosure proceedings under these deeds, the stoppage of foreclosure by a settlement agreement, the execution, alleged unauthorized delivery and the recording of two warranty deeds given in accordance with the agree-
What we have said forecasts our conclusion that the trial court erred in treating this proceeding as wholly an action at law. But the scope of our view that the suit is equitable in its nature is limited to the grounds alleged by respondent to quiet title in him. Insofar as respondent seeks damages actual and punitive because he was deprived of possession of the premises, the proceeding is an action at law. Respondent joins in one count the relief which he seeks both in equity and in law. The practice in these cases is to invoke in the first count the benefit of the statute to quiet title, and to sue, in a second count, for damages for trespass or for wrongful deprivation of possеssion. Minor v. Burton, 228 Mo. 558, 128 S. W. 964, is an example of the recommended practice.
II.
In view of our decision that this is a suit in equity upon the issues involving title, it is not necessary for us to rule upon other assignments of error arising upon the record made subsequent to the overruling of the motion to transfer. But we deem it fit to notice briefly some of these assignments for the guidance of the chancellor upon a retrial. George M. Hansen is not a party to this suit. Whatever may have been the effect, legal or equitable, of the wrongful acts of Hansen in an action between him and respondent, Wolfersberger, thеre was no substantial evidence, direct or circumstantial, to connect appellants with the fraudulent schemes of Hansen and to deprive them of their rights as innocent holders, for value before maturity, of the notes secured by the two deeds of trust upon the apartments in suit. There was missing from the evidence the link of fraudulent connectivity which, in the case of Buchanan v. Rechner, 333 Mo. 634, 62 S. W. (2d) 1071, was held to bind the same Rechner who is appellant here to the wrongful acts of Buckingham, his codefendant in that case.
III.
Respondent urges that, at thе time, that appellant Rechner purchased the two promissory notes for $1,725 each, secured by third deeds of trust, the interest was past due and unpaid and
IV.
We do not believe that upon a second trial the court below should permit a money judgment against appellant, Emma L. Rechner to stand, in the absence (as in the first trial) of any evidence whatever of her connection with the frauds charged. In a trial of the issues involving title she is a necessary and proper party in view of the admissions of the answer that Glenna Hoppenjon holds title for the use and benefit of Rechner and wife, “and that the defendant Charles H. Rechner is the owner of the entire beneficial interest in said property subject only to the marital rights of the defendant Emma L. Rechner to-wit: the inchoate dower of the said Emma L. Rechner.”
V.
For the reason that the trial court committed prejudicial error in refusing to transfer the cause to the equity docket, the judgment is reversed and the cause is remanded. Cooley and Westhiues, CC., concur.
PER CURIAM:—The foregoing opinion by FITZSIMMONS, C., is adopted as the opinion of the court. All the judges concur.